When a party to an agreement, signed by the other contracting
party, had delivered to such, party a copy of the agreement in his
own handwriting, but not signed by him, and from the nature of the
instrument it was to be fairly presumed the original was in his
custody, notice to produce the original paper in order to give the
copy in evidence is not necessary. Such a copy, when offered to
charge the party by whom the same was made and who, by the tenor of
the agreement, was to perform certain acts therein stated may be
considered not as a copy but as an original in relation to the
obligations of the party giving the copy, and be so given in
evidence.
Where letters, a part of the evidence in the court below, have
become lost or mislaid, everything is to be presumed to have been
contained in them to support the opinion of the court in relation
to their contents, and the party who denies that the letters
authorized the decision of the court upon them, must show by
evidence their contents.
Surplusage in pleading does not in any case vitiate after
verdict.
In a declaration upon an agreement by way of lease, by which the
lessor stipulated to let a farm from 1 January, 1820, to remove the
former tenant, and that the lessor should have the tenancy and
occupation of the farm from that day, free from all hindrance, the
assignment of breaches was that although specially requested on the
said 1 January, the defendant refused and neglected to turn out the
former tenant, who then was or had been in the possession and
occupancy of the land, and to deliver possession thereof to the
plaintiff, this assignment is sufficient.
It is sufficient that the averment should state the plaintiff's
readiness and offer and his request on the first day of January
generally, and not at the last convenient hour of that day, and if
an averment of a personal demand is made, it need not have been on
the land.
The strict doctrines relative to averments in pleading have been
applied to special pleas in bar, of tender, and some others of a
peculiar character and depending upon their own particular
reasons.
Declarations containing general averments of readiness and
request have been held sufficient, especially after verdict, unless
in very peculiar cases.
The defendant in error instituted a suit against the plaintiff
in error to recover damages arising out of alleged breaches of an
agreement in the nature of a lease dated 18 December, 1819. The
declaration stated the agreement, and the damages claimed were as
an indemnity for expenses incurred by the plaintiff under the
agreement for losses of profits and for not turning out the tenant
who was in possession of the property when the agreement was made.
To support the issue on his part, the plaintiff offered to read in
evidence to the jury the following copy of a paper (the original
of
Page 26 U. S. 19
which was signed by Joshua Peake) and which was admitted to be
wholly in the handwriting of the plaintiff in error.
"I agree to rent of Daniel Carroll, of Dudington, the land
rented heretofore to Wilfred Neale, the same being in St. Mary's
County, for which I oblige myself to pay, on 1 January, 1821, for
one year, from 1 January, 1820, six hundred dollars ($600), and to
pay all taxes on the same independent of the above rent, and also I
oblige myself to keep the premises in good repair and not to commit
nor suffer to be committed any waste on the said premises."
"Witness my hand, this 18 December, 1819."
"It is agreed that the taxes shall be paid by Joshua Peake, and
the said Carroll will allow the same on the tax bill, receipted,
out of the rent."
"[Signed] JOSHUA PEAKE"
"Witness"
"WILLIAM DUDLEY DIGGES"
To the admission of this paper by the court the counsel for the
plaintiff objected, but the court allowed it to be read by the
jury, upon which it rendered a bill of exceptions, and by writ of
error the cause was brought before this Court.
Page 26 U. S. 20
MR. JUSTICE TRIMBLE delivered the opinion of the Court.
Joshua Peake brought this action on the case in that court upon
a special agreement against Daniel Carroll, who pleaded the general
issue, and upon the trial a verdict and judgment were rendered for
the plaintiff therein. A bill of exceptions was taken by the
defendant in the court below which states that the plaintiff, to
support the issue on his part, offered to read in evidence to the
jury the following copy of a paper, the execution of the original
of which was admitted, signed by Joshua Peake, which copy is
admitted to be wholly in the handwriting of the defendant,
to-wit:
"I agree to rent of Daniel Carroll, of Dudington, the land
rented heretofore to Wilfred Neale, the same being in St. Mary's
County, for which I oblige myself to pay, on 1 January, 1821, for
one year, from 1 January, 1820, six
Page 26 U. S. 21
hundred dollars ($600), and to pay all taxes on the same,
independent of the above rent, and also oblige myself to keep the
premises in good repair and not to commit nor suffer to be
committed any waste on the said premises."
"Witness my hand this 11 December, 1819."
"It is agreed that the taxes shall be paid by Joshua Peake, and
the said Carroll will allow the same on the tax bill, receipted,
out of the rent."
"JOSHUA PEAKE"
"Witness"
"WILLIAM DUDLEY DIGGES"
Which paper was so offered in evidence, in connection with three
letters from defendant to the plaintiff, as a component part of the
sum of evidence relied on to prove the contract as laid in the
declaration, which letters are in these words and figures,
following, &c . [The letters were mislaid.]
To the reading of which paper the defendant, by his counsel
objected as not being competent and legal evidence to charge the
defendant in this case, but the court permitted the said paper to
be read in evidence to the jury, &c., to which opinion of the
court the defendant by his counsel excepted, &c. The plaintiff
then, further to support the issue on his part, offered in evidence
to the jury the said letters from defendant to plaintiff and
admitted to be in the handwriting of the defendant as component
parts, in connection with the said paper before admitted, of the
evidence of the agreement on which this action is founded, to the
admission of said letters as part of said agreement the defendant
by his counsel objected, but the court overruled said objection and
permitted said letters to be read to the jury as part of said
agreement, to which opinion of the court the defendant by his
counsel excepted.
It is insisted by the counsel for the plaintiff in error that
these opinions are erroneous and that the judgment of the circuit
court should for that cause be reversed.
The bill of exceptions does not put the objection to the paper
offered in evidence distinctly upon the ground that, being a copy,
it could not be used without timely notice to produce the original.
Although some doubt exists whether the objection ought not to have
been placed on that ground in the court below in order to make it
available here, yet as the whole argument in this Court has
proceeded upon the assumption that the question is sufficiently
raised upon the bill of exceptions, we will so consider it. The
principle relied upon is that a copy cannot be given in evidence if
the original be in the possession of the adverse party unless
timely
Page 26 U. S. 22
previous notice has been given him to produce it at the trial.
This is certainly true as a general rule. But in examining the
numerous adjudged cases to be found in the books in which this
general rule has been asserted and applied, we have been able to
find no case like this. They are all cases where the copy offered,
had not been made by the party against whom it was attempted to be
used. This is a case in which the execution of the original is
distinctly admitted, and the paper called a copy is admitted to be
wholly in the defendant's handwriting. From the nature of the
transaction, he was entitled to and must be presumed to have the
custody of the original. The copy, made out by himself, must be
presumed to have come to the plaintiff's possession by the
defendant's own act, and by making and delivering it to the
plaintiff, the defendant consents that it shall be considered
genuine and true. We think that under such circumstances, this case
forms a just exception to the general rule, and that it is not
competent for the defendant below to allege against his own acts
and admissions that this paper does not nor may not contain all the
verity and certainty of the original. So far we have considered
this paper as if it ought to be regarded in the light of a copy.
But we think that is not its true character as it was presented to
the court and jury. We think that under the circumstances and to
the purposes for which it was offered, it may fairly be regarded as
an original.
As relates to Peake's contract to pay rent, &c., it was a
copy, but was it a copy as respects Carroll's agreement to let the
farm? If so, it was a copy without an original, for the original
paper was not signed by Carroll and contained no contract on his
part. The paper was offered in evidence in connection with the
three letters from the defendant to the plaintiff as a component
part of the evidence to prove the defendant's agreement to let the
farm to the plaintiff and the terms of that agreement. The clerk
certifies that the letters referred to are not on file in the
cause, and they are not transcribed into the record. In their
absence, if there be a supposable case in which they and the paper
called a copy were legitimate evidence regarding that paper as an
original, and not as a mere copy, it must be so regarded. We are
bound to presume everything in favor of the correctness of the
decision of the court below until the contrary appears.
If the letters, which are admitted to be in the defendant's
handwriting, were relevant to the matter in controversy, and in
their absence that must be presumed, no doubt can exist of their
being competent and legitimate evidence to prove the contract sued
on so far as they spoke on that subject. It has been already
remarked that the paper called a copy was
Page 26 U. S. 23
admitted to be in the defendant's handwriting and that it must
have come to the plaintiff's hands by the defendant's act. Let it
be supposed, then, that having copied, in his own hand Peake's
agreement to pay rent, &c., he had enclosed that paper in one
of those letters and referring to it. The letter here stated that
he, (Carroll) agreed to let and lease the farm to Peake upon terms
expressed in the enclosed paper. It is plain that in the case
supposed, the enclosed paper, although it might be a mere copy as
respected Peake's part of the contract, yet as respected the
contract on Carroll's part, would be truly an original document by
adoption and incorporation with the letter, as much as the letter
itself. It would be a part of the letter. We do not say the paper
was thus enclosed and referred to in the letters or either of them,
but it might have been, for ought that appears, and that is
enough.
Upon the principle assumed as correct that the opinion of the
court below must be regarded as sound until its incorrectness is
made to appear, the plaintiff in error cannot prevail unless he can
show, in the absence of the letters, that no case could have
existed, they being present, in which the paper objected to could
be considered in the light of an original document. The case first
shows that such a case might have existed and have been proved upon
the trial. It is by no means a strange supposition to presume that
such was the aspect of the case, for it is perfectly consistent
with a known and familiar manner of transacting business where the
parties reside at a distance or where, for other causes, the mode
of contracting by correspondence is resorted to. It is objected
that the declaration shows no cause of action and it is insisted
the judgment shall be reversed for that cause. The declaration is
very loosely drawn, and a great deal of matter is crowded into it
which is impertinent or, at most, only in aggravation of damages.
But surplusage in pleadings does not vitiate in any case after
verdict, and wholly disregarding the impertinent and irrelevant
matter, the declaration contains enough to support the action. The
declaration in substance alleges that the defendant below agreed to
rent and to farm let to the plaintiff the farm, for one year from 1
January, 1820, and agreed to remove the former tenant, and that the
plaintiff should have the possession and occupancy of the farm from
1 January aforesaid, free from the let, hindrance, or disturbance
of anyone. The declaration then proceeds to aver that on the said 1
January, 1820, at the county aforesaid, the plaintiff was ready and
willing and offered to the said Daniel (the defendant) to take
possession of the said land and farm and to rent and occupy the
same, &c., and afterwards assign breaches,
inter alia,
in this, that
Page 26 U. S. 24
although specially requested so to do, on the said 1 January,
1820, the defendant refused and neglected to turn out the tenant,
who then was and had been in the possession and occupancy of the
said land and farm, and to deliver the possession thereof to the
said Joshua.
The specific objections urged in argument are that the plaintiff
should have averred his readiness and offered his request, not on 1
January generally, but at the last convenient hour of that day, and
that instead of charging a personal demand, it ought to have been
averred to have been made on the land. It must occur to everyone
that an offer and request upon the land in the absence of the
defendant would be a very idle and useless ceremony, and that an
offer and request to him personally was much better calculated to
enable him to perform his duty and fulfill his agreement.
We cannot admit that it was necessary the offer and request
should be made at the last convenient hour of the day. The strict
doctrines contended for have been applied to special pleas in bar
of tender, and some others of a peculiar character and depending
upon their own particular reasons, but there is no analogy between
them and this case.
In declarations, general averments of readiness and request on
the day have always been held sufficient, especially after
verdict.
We are of opinion, there is no error in the judgment and
proceedings of the circuit court, and the same is
Affirmed with damages and costs.
