Almy v. Reed

The affidavit of the plaintiff was clearly admissible to prove that the note was not in his possession, but had fraudulently passed into the hands of one of the defendants. It was competent, however, as evidence to the court, solely for the purpose of explaining the non-production of the note and to render secondary evidence of its contents admissible. Were it not for this well recognized exception to the general rule, which dispenses with the production of written documents upon the affidavit of the party as to their loss or destruction, there would in many cases be no means of recovering upon notes, lost by accident, or obtained from the possession of the holders by fraud. The exception is founded on the necessity of the case, in order to prevent a failure of justice, and to allow a party to prove his case by the only competent evidence within his reach. The admission of the affidavit of a party as evidence to the court in such cases does not contravene the rule that a party shall not testify in his own cause, but only permits him to prove his case by the use of other evidence. The affidavit was, therefore, competent as evidence to the court, but was inadmissible as proof of the case to the jury. Chitty on Bills, 11 Amer. edit. 265, n. 1; Cowen & Hill’s notes to Phil. Ev., part 2, n. 220, 408, 409; 1 Greenl. Ev. § 558; Davis & wife v. Spooner, 3 Pick. 284, 287; Donelson v. Taylor, 8 Pick. 390.

The only remaining question is, whether, excluding the affidavit, there is sufficient evidence in the case to warrant a jury in finding a verdict for the plaintiff for the amount claimed as due upon the note. Without going into a minute examination of the testimony, the facts proved, and the inferences fairly deducible therefrom, may be thus stated. A note signed by the two defendants, the said Reed as principal, and Whitwell as surety, bearing date May 4,1846, for one thousand dollars, payable to the plaintiff on demanu *426with interest, was delivered to the plaintiff by the defendants' agent, for which he advanced the money to them; this note remained in the plaintiff’s possession till April 18, 1849; sundry payments of principal and interest were made, and indorsed thereon at different times between the day of its date and said eighteenth of April; on the last-named day a computation of the amount due on said note was made at the request of the plaintiff, when the balance was found to be seven hundred eighty-two dollars and sixty-two cents; on the same day, a new note was given to the plaintiff signed by said Reed, and purporting to be signed by said Whitwell, for the sum of seven hundred dollars; soon after and before June, 1849, said Reed failed and absconded, having forged the signature of Whitwell to other notes; the note for seven hundred dollars, dated April 18, 1846, was presented by the plaintiff, immediately after said Reed had absconded for payment, to said Whitwell, who then pronounced his signature thereto to be forged; until the presentation of said note alleged to be forged, said Whitwell did not know that the original note for one thousand dollars had been taken up by said Reed by the substitution of another note, or in any other manner; and there was no proof of any other dealing or transaction between the parties having ever taken place, except what grew out of the original note for one thousand dollars. From these facts, and the inferences deducible therefrom, we are very clearly of the opinion, that a jury would have been warranted in finding that the original note for one thousand dollars, signed by the two defendants, was taken up by Reed, by the substitution therefor of «the note for seven hundred dollars on the 18th of April, 1849, bearing the forged signature of Whitwell; that the plaintiff took it, believing the signature to be genuine, and upon the faith of the security of the name of said Whitwell, and that, thereby, the plaintiff was defrauded by said Reed, and induced, by false pretences, to give up to him said original note. This being so, it follows that the plaintiff, having received the note for seven hundred dollars on the faith that it was the valid note of both, has a right to treat it as a nullity and resort to the original *427contract for which it was fraudulently substituted. Leonard v. Trustees of First Congregational Society in Taunton, 2 Cush. 462. By the well-settled rule in this commonwealth, the plaintiff, having tendered and filed a bond with satisfactory sureties, to indemnify the defendants against any further claim on said original note for one thousand dollars, is entitled to judgment for the amount due thereon. Fales v. Russell, 16 Pick. 315. Judgment for the plaintiff.