CHAPTER XL. LETTERS AND TELEGRAMS. g. Failure to Answer as Admission. i. Letter-press Copy Admissible When. k. Letter Duly Posted, Presumption. 1. Letters as the Subject of Copyright. m. Injunctive Relief against Improper Use. a. Rules as to Letters Applied. b. Views of the Illinois Supreme Court. e. Presumption as to Telegrams. f. Exemption from Liability Denied. i. Position of the Ohio Supreme Court. j. Special Contract, how Evidenced. 389. General Rules as to Contents of Letters. a. Originals Must be Produced, Letter-press Copy.-When it becomes necessary to prove the contents of letters which have passed between parties, the originals must be produced, or the party desiring to give proof of their contents must lay the foundation for secondary evidence in the ordinary and usual way. Letter-press copies are in no sense original papers, and cannot be admitted in evidence without the preliminary proof. Foot v. Bentley, 44 N. Y. 166; Marsh v. Hand, 35 Md. 123. When this proof has been given these copies become evidence. Dr. Wharton, in an admirable presentation of this subject, says: "If no evidence is to be rejected because it is secondary, a single witness would be sufficient to swear, either primarily or secondarily, either by first hand or second hand impressions, to a whole case, documentary and oral; the testimony of a witness in such a case, would be a mere conclusion of law, derived from his own notions of facts, with this peculiarity, that the law would be made by himself for the occasion; and the functions of both judge and jury would be dispensed with. If any evidence is to be rejected because it is secondary, then it is best to put the line where it is most intelligible; where it is most likely to secure care and diligence in the preparation of a case, and accuracy in the presentation of that case to the court." Whart. Ev. § 60. Whenever a copy of a record or a document is itself made original or primary evidence, the rule is clear and well settled that it must be a copy made directly from or compared with the original. If the first copy be lost, or in the hands of the opposite party, so long as another may be obtained from the same source, no ground can be laid for resorting to evidence of an inferior or secondary character. The admission of a transcript from the record of a deed or other private writing, for the record of which provision is made by law, is not an exception to, but only a modification of the same rule. But when the source of original evidence is exhausted, and resort is improperly had to secondary proof, the contents of private writings may be proved like any other fact, by indirect evidence. The admissibility of evidence offered for this purpose must depend upon its legitimate tendency to prove the facts sought to be proved, and not upon the comparative weight or value of one or another form of proof. The jury will judge of its weight, and may give due consideration to the fact that a less satisfactory form of proof is not produced when it might have been readily obtained. But there are no degrees of legal distinction in this class of evidence. Although there has been much diversity of practice, and the decisions are far from uniform, the decided weight of authority is as we think towards the establishment of the rule here stated. 2 Phil. Ev. (4th Am. ed.) 568; 1 Greenl. Ev. §§ 84, 582; Stetson v. Gulliver, 2 Cush. 494; Robertson v. Lynch, 18 Johns. 451; Winn v. Patterson, 34 U. S. 9 Pet. 663, 9 L. ed. 266; Brown v. Woodman, 6 Car. & P. 206; Doe v. Ross, 7 Mees. & W. 102. See Goodrich v. Weston, 102 Mass. 362. And the weight of authority favors the contention that a copy of a letter to the opposite party, cannot be given in evidence when no notice has been given to produce. Chicago v. Greer, 76 U. S. 9 Wall. 726, 19 L. ed. 769. b. Secondary Evidence. The New York Supreme Court holds that secondary evidence of the contents of a written instrument, when allowed, does not obviate the necessity of proving the genuineness of the instrument, but renders it more imperative. When secondary evidence of the contents of a writing is admissible, it is indispensable that the person by whom it is proposed to prove it should have seen and read the writing, and can speak from personal knowledge. His having heard another person read it is not sufficient, and a party cannot be charged with notice of the contents of a letter written and sent to him, without proof that it was properly mailed and forwarded to his address. Dainese v. Allen, 14 Abb. Pr. N. S. 363. The placing of a communication in a box used by the party for the deposit of letters creates a presumption that it reached him; and his denial that he received it raises a conflict of evidence. Dana v. Kemble, 19 Pick. 112; Bluck v. Thorne, 4 Campb. 192; Howard v. Daly, 61 N. Y. 362, 19 Am. Rep. 285. When it is necessary to prove a demand by the introduction of a letter containing other matter, only that part of the letter which contains the demand can be put in evidence, and if the demand is admitted the letter is properly excluded. Railway Pass. Assur. Co. v. Warner, 1 Thomp. & C. Addenda, 21. Where a letter is offered for the purpose of proving a notice contained in it, a general objection is not sufficient, but the inadmissible part must be objected to. Stokes v. Johnson, 57 N. Y. 673. c. Decoy Letters.-A decoy letter sent by one engaged in larceny to the porter of a warehouse for the purpose of alluring the latter from his place,-held admissible against one who is shown to be connected with such larceny. McCarney v. People, 83 N. Y. 408, 38 Am. Rep. 456. d. Unanswered Letters.-The Supreme Court of Illinois. held in a very celebrated case decided in 1887, that an unanswered letter is admissible in evidence against the person who received it and to whom it was addressed, if it appears to have been invited by him, and to have been written in response to some previous communication by him (Spies v. People, 10 West. Rep. 701, 122 Ill. 1), and was subsequently considered in the Supreme Court of the United States. Spies v. Illinois, 123 U. S. 131, 31 L. ed. 80. e. Extract from Lost Letter.-The New York courts hold that an extract from a lost letter is not evidence, unless the witness can testify as to the contents of the whole document. Walbridge v. Kilpatrick, 9 Hun, 135. Where the person to whom the letter is written testifies that he does not know where it is, but believes it has been destroyed, its contents are admissible in evidence. Green v. Disbrow, 7 Lans. 381. And it further appears from the decisions that mere possession of letters addressed to one does not render them competent against. him. Willett v. People, 27 Hun, 469. In this connection it is well to observe the constant tendency on the part of the courts of last resort throughout this country to admit evidence of any facts which tend to elicit the truth. Connecticut Mut. L. Ins. Co. v. Lathrop, 111 U. S. 612, 28 L. ed. 536, 29 Alb. L. J. 429. f. Importance of Letters.-Letters frequently disclose facts that are well calculated to unfold and develop the nature of a transaction, and they should be admitted as part of the res gestæ, notwithstanding they contain declarations in a party's favor. Beaver v. Taylor, 68 U. S. 1 Wall. 637, 17 L. ed. 601. Although a letter contains a statement as to an alleged agreement, made after the date when an agreement was made, it is still admissible as part of the res gesta. McCotter v. Hooker, 8 N. Y. 497; Palmer v. First Nat. Bank, 4 N. Y. Week. Dig. 268; Jewell v. Jewell, 42 U. S. 1 How. 219, 232, 11 L. ed. 108, 114; Com. v. M'Pike, 3 Cush. 181; Com. v. Hackett, 2 Allen, 136; Tompkins v. Saltmarsh, 14 Serg. & R. 275; Rawson v. Haigh, 2 Bing. 99, 104; Ridley v. Gyde, 9 Bing. 349; Rouch v. Great Western R. Co. 1 Q. B. 51; Thorndike v. Boston, 1 Met. 242, 247; Doe v. Arkwright, 5 Car. & P. 575. g. Failure to Answer as Admission.-An omission of one of the parties to a transaction, to answer a letter written to him after the transaction, by the other party thereto, giving the latter's version thereof, may not be taken as an admission of the truth of the statements in the letter; they are mere declarations of the writer in his own behalf, which do not demand an answer, and are not admissible against the party to whom the letter is sent. Learned v. Tillotson, 97 N. Y. 1. h. Notice to Produce. As we have seen, the fact that a party keeps letter-press copies of letters does not obviate the necessity of producing the originals or of laying the foundations in the ordinary and usual way for secondary evidence. Such letters are in no sense original papers, and even when carefully compared, could not be read in evidence without first giving notice to produce the original. Foot v. Bentley, 44 N. Y. 166. i. Letter-press Copy Admissible When.-A sworn copy of a letter-press copy of a lost letter is competent as evidence of the contents of the letter, without producing the letter-press copy. Goodrich v. Weston, 102 Mass. 362, 3 Am. Rep. 469. This is upon the ground that there are no grades of secondary evidence. Whenever a copy of a record or document is itself made original or primary evidence, the rule is clear and well settled that it must be a copy made directly from or compared with the original. If the first copy be lost or in the hands of the opposite party, so long as another may be obtained from the same source, no grounds can be laid for resorting to evidence of an inferior or secondary character. 3 Wait, L. & Pr. (5th ed.) 444. So when secondary evidence is admissible, parol evidence of the contents of a document is admissible, although there is a copy of the document in evidence. Doe v. Ross, 7 Mees. & W. 102, 107; Best, Evidence, § 87. But this |