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January 1, 1828


WRIT of error to the Circuit Court for the county of Washington. This suit was instituted by the defendant in error in the Circuit Court for the county of Washington, for the recovery of a sum paid by him to the plaintiff in error, on a purchase of 7462 shares of stock in the Central Bank of Georgetown and Washington; the plaintiff in the suit alleging, that he had paid to the extent of three per centum on the said stock, upon a contract, that if the Bank should not declare a dividend which would repay him the said three per cent., that the same should be refunded to him. The contract had been reduced to writing, and had afterwards been lost, mislaid or destroyed by the plaintiff. The declaration contained three counts; 1. Stating a conversation between the plaintiff and the defendant, concerning the sale of the stock, held by the defendant in the bank; and that in the conversation it was agreed, that the defendant should sell to the plaintiff the shares held by him at par; that the defendant represented that a dividend would be made on the same, of four per cent., and stated that the plaintiff should advance and pay to the defendant, so much of the dividend as had then been earned by the bank; and that confiding in the said representations, and believing the dividend would be made, he, the plaintiff, agreed to advance the supposed earnings of the stock, which according to a calculation amounted to three per cent., and a memorandum in writing of the agreement was then made; the stock was then transferred to the plaintiff, and he paid the defendant the par price of the same, and advanced or paid to him the sum of $1902, being the supposed earnings of the bank, at the time of the contract–that at the time of the contract, the bank had made no profits on which a dividend could be declared, nor did the bank, on the regular day of declaring the dividend, make any dividend upon the said stock, by means of which the defendant became bound to refund the sum so advanced for the supposed earnings of the bank. 2. Count Indebitatus assumpsit, for money had and received. 3. Court indebitatus assumpsit, for money laid out, &c. On the trial of the cause, William Hebb was offered and examined, subject to exceptions to his testimony as a witness on the part of the defendant in error, in relation to the contract between the parties. This evidence is fully stated in the opinion of the Court. The defendant below requested of the Court certain intructions which were refused, and a bill of exceptions to this refusal was allowed by the Court. A verdict and judgment having been given for the plaintiff below, the case was brought by writ of error from this Court. Mr. Charles Carter Lee and Mr. Jones for the plaintiff in error. 1. The plaintiff below had not laid a sufficient ground for the introduction of the secondary evidence, which he afterwards produced. The written contract described in his affidavit, is not that proved by the parol evidence, but differs from it essentially. As the contract described was an executed contract, that proved by parol testimony was executory. 2. The contract described in the affidavit, was one upon which an action for a tort might be sustained, and that proved was in contract. 3. If the secondary evidence was admissible, William Hebb was not competent to prove the contract; he does not recollect the terms of the contract, and is not therefore a witness to prove it. Fox's lessee vs. Palmer, 2 Dal. 214. He had not read it, but had heard it read, which, as has been decided, was equivalent only to reading a copy. 1 Camp. 193. 1 Stark. Rep. 167. This uncertainty as to the contents of the contract, and that there was within the process of the Court a witness who had made out a copy, are also objections to his testimony. Nor does the evidence show with any disinctness, an agreement to do what was claimed by the plaintiff below. 4. The evidence was not admissible upon either count of the declaration, as the testimony given varied from the allegata in both; and the effect of the evidence would be to explain a written contract, which cannot be done by parol. This evidence can only be given to explain an ambiguity. Cope vs. Atkins, 1 Price, 143, and also 404 in the same volume. That evidence also showed the contract to be executory, and not a contract to refund or pay the dividend, for breach of which indebitatus assumpsit will not lie. Cutler vs. Powell, 6 T. R. 320. 2 Petersdoff, 418. Cook vs. Munstone, 4 Bos. & Pull. 351. Leeds vs. Burrows, 12 East, 1. Nor does the declaration allege a contract to refund the dividend, nor any consideration sufficient to raise such a contract. The judgment being general, if any one count was bad, the judgment must be arrested. 6 T. Rep. 691. A sale of the supposed profits of a bank does not, ex vi termini, include an agreement to refund them, if no profits are made; nor are representations of the prospects of dividends the subjects of an action. Mr. Swann and Mr. Key for the defendant in error. After the decision of the Court below, the only question in the case is, what was the agreement of the parties. It was a sale of stock at par, and of the dividends; and the defendant in error did not get the dividends which he had advanced to the plaintiff in error, and there was an implication that they should be repaid. The evidence was contradictory, and was proper for the jury. As to the admission of parol testimony to explain written evidence, it is an established principle, that the acts of the parties at the time of the making of the contract may be proved by parol. Many cases might be cited to establish this principle. As to the breach of the contract, and the liability of the plaintiff in error, the books of the bank show that at the time of the sale of the stock, no profits were made; the plaintiff in error having been president of the bank, knew this, and he knew that the three per cent. beyond the par value of the stock was an advance, and must be repaid, and this may be recovered by indebitatus assumpsit.

The opinion of the court was delivered by: Mr. Chief Justice Marshall delivered the opinion of the Court.––

This action was brought in the Circuit Court for the District of Columbia, by Elisha Riggs, the defendant in error, to recover back a sum of money paid on a contract for the purchase of stock.

The declaration contained two counts; the first on the contract, which was in writing; the second for money had and received by the defendant, to the use of the plaintiff.

At the trial, the plaintiff in the Circuit Court, offered testimony to prove the contents of the contract, having first given notice to the defendant to produce the duplicate copy which had been delivered to him, when it was executed, and made an affidavit that the copy which had been retained by him, was either destroyed or lost.

The secondary evidence was admitted, the defendant in the Circuit Court reserving all objections, both to its admissibility and competency.

The first count in the declaration states a conversation between the parties on the 15th of May 1818, concerning the sale of the stock, which the said John Tayloe held in the Central Bank of Georgetown; and alleges, that it was then and there agreed, that the said John should sell to the said Elisha, the stock which he held in the said bank, amounting to 7642 shares at par; and further, that the said John represented that a dividend of four per cent. would be made on the said stock, at the ensuing first Monday in July, and insisted that the said Elisha should advance to him, in addition to the par value, so much of the said dividend as the said stock had already earned, which according to a calculation then made, amounted to three per cent. The declaration further alleges, that the said Elisha, confiding in the representations of the said John, did agree to advance the supposed earnings of the said stock. The agreement was then reduced to writing, and signed by the parties. It was further agreed, that the said Elisha might confirm or annul the contract in ___ days. The declaration further states, that, confiding entirely to the representations of the said John, the said Elisha did agree to confirm the said agreement, and did agree to buy the said stock, at par price, and to advance to the defendant the profits, which the stock was supposed to have earned.

The declaration then charges, that the stock was transferred, its par value paid, and the additional sum of three per cent., its supposed earnings, amounting to 1902 dollars, paid: The declaration further charges, that at the time of the contract, the bank had made no profit on which a dividend could be declared; and that it was not competent for the said bank, on the said first Monday in July, then next following, to declare any dividend; and, that in fact the bank did not declare any dividend on the said stock, of which the said defendant had notice; by means whereof he became liable and bound to refund the money so advanced, for the supposed earnings of the said stock, and being so liable, he in consideration thereof assumed, &c.

William Hebb, a witness produced by the plaintiff below, deposed, that he came into a room in which the parties were sitting, when the said Tayloe informed him, that the said Riggs was about to purchase his stock, and he requested the witness to take a seat and be an evidence to the contract. The said Riggs then asked the said Tayloe what were his terms? He answered that he would take par, with the dividend which would be declared at the next periodical term, which he thought would be four per cent. Mr. Riggs said, he supposed Mr. Tayloe meant only the interest which had accrued at that time, to which Mr. Tayloe assented; a calculation was then made, and the supposed profit estimated at three per cent. The plaintiff asked time to consult his friends, and said he would take the stock on the terms offered. The plaintiff, at the request of the defendant, drew up a memorandum of the agreement, which was read over hastily in the presence and hearing of the witness. It was copied, signed, and attested by the witness, and each party took one.

He understood, a day or two afterwards, that the contract was affirmed. On being cross-examined, the witness said that he did not recollect whether the written contract expressed that par was to be paid for the stock, nor that any advance upon the stock was specified; nor does he recollect, how the contract was expressed. But his impression and belief is, that the understanding of the parties was that three per cent. was to be paid upon a contingency that the next dividend amounted to four per cent., and that the written contract was to the same effect.

The counsel for the defendant below, objected both to the admissibility and competency of this testimony: but the Court overruled his objections, and permitted it to go to the jury. To this opinion he excepted.

The first question to be considered, is, whether parol testimony, could, in this case, be let in to prove the written contract.

The rule of law is, that the best evidence must be given of which the nature of the thing is capable; that is, that no evidence shall be received, which presupposes greater evidence behind, in the party's possession or power. The withholding of that better evidence, raises a presumption, that, if produced, it might not operate in his favour. For this reason, a party who is in possession of an original paper, or who has it in his power, is not permitted to give a copy in evidence, or to prove its contents.

When, therefore, the plaintiff below offered to prove the contents of the written contract on which this suit was instituted, the defendant might very properly require the contract itself. It was itself superior evidence of its contents, to any thing depending on the memory of a witness. It was once in his possession, and the presumption was that it was still so. It was necessary to do away this presumption, or the secondary evidence must be excluded. How is it to be done away? If the loss or destruction of the paper can be proved by a disinterested witness, the difficulty is at once removed. But papers of this description generally remain in possession of the party himself, and their loss can be known in most instances only to himself. If his own affidavit cannot be received, the loss of a written contract, the contents of which are well known to others, or a copy of which can be proved, would amount to a complete loss of his rights, at least in a Court of Law. The objection to receiving the affidavit of the party is, that no man can be a witness in his own cause. This is undoubtedly a sound rule, which ought never to be violated. But many collateral questions arise in the progress of a cause, to which the rule does not apply. Questions which do not involve the matter in controversy, but matter which is auxiliary to the trial, which facilitate the preparation for it, often depend on the oath of the party. An affidavit to the materiality of a witness, for the purpose of obtaining a continuance; or a commission to take his deposition, or an affidavit of his inability to attend; is usually made by the party, and received without objection. So, affidavits to support a motion for a new trial are often received. These cases, and others of the same character which might be adduced, show, that on many incidental questions which are addressed to the Court, and do not affect the issue to be tried by the jury, the affidavit of the party is received.

The testimony which establishes the loss of a paper is addressed to the Court, and does not relate to the contents of the paper. It is a fact which may be important as letting the party in to prove the justice of the cause, but does not itself prove any thing in the cause. As this fact is generally known only to the party ...

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