
    RUDOLPH SCHMIDT v. HERMAN SCHANZLIN, et al.
    
      Evidence.—Letters, posting of, secondary evidence.—Position not ialcen on trial—when cannot he first talcen on appeal.
    
    The testimony of a witness that a letter had been mailed in the regular way, is prima facie proof that it was mailed properly addressed, and with postage prepaid.
    In an action to recover the possession of certain goods, plaintiff having taken the position on tjie trial, that they were consigned by him to defendant for sale on commission only, and the defense being that they were sold outright by plaintiff to defendant, evidence of defendant’s insolvency at the time when he ordered the goods, is admissible as tending to furnish, if defendant’s position be maintained, a ground of recovery admissible under the complaint, and as bearing on the probabilities as to whether the transaction was a consignment or a sale.
    Where secondary evidence of the contents of a letter is offered, and on objection being made, proof of service of a notice to produce is givfen, and the court holding such notice insufficient, rejects the evidence, the party offering the same, after having-had the benefits of an exception, cannot take the position on appeal, for the first time, that the paper being out of the jurisdiction of the court, a notice to produce was not necessary to permit secondary evidence (Per Sedgwick, Oh. J.).
    Before Sedgwick, Oh. J., Truax and O’G-orman, JJ.
    
      Decided July 6, 1886.
    Defendants’ exceptions ordered to be heard in the first instance at general term.
    Action in replevin to recover certain wines which plaintiff claimed to have consigned to defendant Schanzlin for sale, and which defendant claimed to have bought.
    The complaint alleged :
    “ That the defendants have become possessed of and wrongfully detain from the plaintiff the following goods and chattels, the property of the plaintiff, that is to say, thirteen puncheons of wine, marked H. S., of which ten contained claret, one hock, one dry muscatel, and one Riesling, of the value of $1,209.63. ,
    “That said goods were duly demanded from defendants before the beginning of this action, but that defendants have failed and neglected to deliver the same to plaintiff, to plaintiff’s damage $1,400. Wherefore plaintiff prays,” &c.
    
      Meyer Auerbach, for plaintiff.
    
      P. & B. Mitchell, for defendants.
   By the Court.

—Sedgwick, Ch. J.

—The first exception was to the introduction of a copy of a letter, which plaintiff claimed he had sent by post to the defendant Schanzlin. The only objection taken was that plaintiff had not shown that the letter had been mailed or properly addressed to the defendant, or that the postage was prepaid. The objection was not sound, for, according to the rule in Oregon Steamship Co. v. Otis (100 N. Y. 446), all the things referred to, had been prima facie proved by an answer of an earlier witness, that the letter in question had been mailed to the defendant Schanzlin-in the regular way.

An exception was taken to the admission as evidence of the schedule attached to an assignment made by defendant Schanzlin for the benefit of his creditors. Primarily, these were objected to as immaterial. The counsel for plaintiff then said that he wanted to show that Mr. Schanzlin was insolvent when he made the proposition, when he bought the wine, and that he knew himself to be insolvent. The defendants’ counsel then made the further objection that the plaintiff had taken the position that the goods had been only consigned to defendant, and could not introduce evidence on an inconsistent position that the goods were sold'by plaintiff and bought by defendant. The objection was overruled. The plaintiff does not seem to have taken the position as a ground of recovery in offering the testimony, that the defendant had in fact bought the goods, not intending to pay for them, except in this way. The defendant when the plaintiff’s agent demanded the goods of the defendant, gave as a reason for retaining them, that he had bought the goods of plaintiff, and such was the substantial defense of the action as claimed. Thereupon the plaintiff proposed to prove that even if by supposition, the goods had been bought, the defendant did not intend to pay for them, and for that reason the defense or the reason for retaining them after demand, was not valid. The plaintiff would have had a right to argue to the jury, not only ha-ve the witnesses shown the goods were consigned, but the defendant meets this only by setting up a sale which, if it occurred, would have been fraudulent, and which under the complaint would have entitled the plaintiff to recover. In other words, if the plaintiff’s primary position did not furnish a ground of recovery, the position assumed as a defense did furnish it. In the conflict of claim it was something that the jury might consider, whether, if the defendant were insolvent, he would more likely solicit consignments or incur the liabilities of a purchaser of goods. I think there was no error in the ruling of the court. Although insolvency be not proof of an intent not to pay, it is relevant testimony on the subject.

The counsel for defendant excepted to the exclusion of copies of letters written by the defendant to the plaintiff, and which formed part of the correspondence from which, mainly, the relation of the parties was to be learned. The original letters themselves seem, at the time of the trial to have been in San Francisco. The plaintiff objected to the copies as improper, secondary evidence. The defendant proved that they had served notice to produce the originals. As this appeared to have been served on the day before the offer was made, and the plaintiff lived in San Francisco, and was not present at the trial, the court properly held that the time given for the production was not sufficient. It is now argued, and perhaps correctly, that it wms not necessary to give notice to produce a paper out of the jurisdiction of the court, in order to give a party a right to prove its contents by secondary evidence. But such position was not taken at the trial. The counsel for plaintiff was led to believe that the paper was offered only in pursuance of the notice, and therefore to take an objection which resulted in an exception fatal to a recovery, if it can now avail the defendants. The objection, it must be assumed, would not have been taken, if the defendants had presented the claim they now do that the evidence was proper if no notice had been given.

As the exceptions were not valid, they should be overruled, and there should be judgment for the plaintiff, on the verdict, with costs.

Truax, J.

—[Concurring.]—The letters that were rejected do not show, nor do they tend to show that the goods were not consigned to the defendant Schanzlin, and therefore it was not error to refuse to admit them. I concur.

O’Gorman, J., concurred in the result.  