Cotton v. Hudson

WARD, J.

Plaintiff, assignee of the payees of two promissory notes, appeals from a judgment in favor of defendant makers of the notes. The main question presented on appeal is whether the trial court erred in receiving testimony of the contents of a collateral written agreement, which defendants

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claim was lost. Following the trial of the ease, both defendants died and the executor and administrator respectively of their estates have been substituted in their places.

The facts of the case are as follows: L. C. Walters and W. T. Bewick had been employees of Reid Bros., Inc., and each of them was the owner of a claim against the corporation for wages, the claim of Walters being in the sum of $5,885, and that of Bewick in the sum of $1832.50. These claims were assigned to James J. Hughes, who, with his wife, gave each a note for the amount of his claim pursuant and subject to a handwritten agreement already entered into between the claimants and defendant Hughes, by the terms of which payment was to be made only in the event Reid Bros, of America was successful in acquiring title to and possession of all the corporation assets of Reid Bros., Inc., within one year from the date of the agreement. At the time of the assignment of these labor claims, a third employee of Reid Bros., Inc., also assigned his claim to defendant Hughes on the same basis, but he does not appear in this action.

While no allegations of the loss of the collateral agreement above mentioned were made in the pleadings, or until the close of plaintiff’s case, defendants were permitted by the court to amend so as to allege the loss of the instrument.

Plaintiff admitted the execution of the agreement, but disputed its terms and claimed the court erred in admitting evidence of its contents where there had been insufficient proof of a diligent and

bona fide

search therefor; also that the court erred in permitting defendants, over objection, to amend their respective answers so as to allege the loss of the collateral agreement.

Defendants argue that the court did not abuse its discretion in permitting secondary evidence of the contents of the document to be admitted, also that there was sufficient evidence to support the court’s finding that the payment of the notes was conditioned upon a contingency that never occurred.