Grimes v. Fall

Baldwin, J. delivered the opinion of the Court Cope, J. and Field, C. J. concurring.

This action was trespass brought against defendants Fall, D encía, Packard, A. S. Hart, M. S. Hart and the Union Cape Mining Company. The gravamen of the action was the backing of the water by the Union Cape Mining Company to the depth of some five feet up to [65]and over the Nebraska claim, which the plaintiffs had a contract to flume and complete, on or before the fifteenth of August, 1858.

The complaint alleges, among other things, that the dam constructed by the defendants, and the waters flooded by it upon the plaintiffs’ claim, prevented the plaintiffs from locating the posts necessary to support the plaintiffs’ flume upon a firm foundation.

The answer denies the averment in hcec verba. In support of their cause the plaintiffs, upon the trial, introduced a witness to prove that he had heard Fall, one of the defendants, say, that the contract to Hart (the original contractor) had been assigned to him. The contract was in writing. This proof seems to have been introduced as the only proof—apart from the alleged admisssions in the pleadings—to show that Fall had anything to do with the alleged trespass. In other words, it was sought to implicate Fall as a trespasser by the proof, in this mode, that he was the assignee of a contract in reference to this work, the damages claimed arising from the manner in which the work was done. That he was the assignee of the contract, and that, by force of this assignment, he was responsible for this alleged trespass, without further proof of his agency in causing or encouraging it, seems to be the proposition to which this proof vras directed, and- which it was offered to establish. It is very true that the answer of Fall, who answered jointly with other defendants, is not as explicit and direct as it might be in denial of the facts charged, of agency in the imputed trespass. But this specific cause of injury, which is averred to be one, if not the most important, of the elements of the plaintiffs’ cause of action, is directly denied. And this evidence of the assignment seems to have been offered to maintain the issue on the part of the plaintiff. It was admitted against the defendants’ objection.

There was error in admitting parol proof of this contract and assignment, without notice of production of the original, or accounting for its loss. Whether Fall was responsible or hot, or in what degree, or how, by the mere fact of taking this assignment, depended upon the terms of the instrument and those of the assignment. These are primarily to be shown by the papers themselves. It is true, that sometimes the fact of the execution or existence of a deed may be shown by parol; but for no purpose of giving it effect as proof of any fact established by it. Whenever effect is to be given to a deed, as such, and to charge a party thereto, the deed itself must be produced. It is unnecessary to adduce authorities to so plain a proposition. But it is