
    Janchar v. Cerkvenik et al.
    (Decided April 28, 1930.)
    
      
      Mr. Harry F. OlicJc, for plaintiff in error.
    Messrs. Boer, Arnold <& Tobias, for defendants in error.
   Sullivan, J.

This cause is here on error from the municipal court of the city of Cleveland, wherein the plaintiff, Charles Janchar, sued Rose and Rudolph Cerkvenik for a commission of $850, based upon an alleged written contract for brokerage, dated July 27, 1928, and in the trial of the case it was sought to introduce verbal proof as to the execution and existence of this written contract, but the court, upon motion of defendants, sustained the objection to any oral evidence and granted a motion for judgment for defendants made at the end of plaintiff’s case. Thus upon the record we have only the evidence proffered by the plaintiff, and rejected, and no evidence upon the part of defendants, and therefore the issue is whether secondary proof is competent and consistent with the statute of frauds (Section 8621, General Code) to show the execution of the instrument in writing, although the plaintiff was not in possession of the document and could not offer it in evidence because after repeated demands upon defendants they refused to produce the same, on the claim that there never was such an instrument and that therefore they could not produce it.

The evidence proffered was to show the substance of the written agreement, but, as before noted, this evidence was rejected on the ground that there was merit in the contention of the defendants’ counsel that pnder the statute of frauds the written instrument itself was the only evidence of a competent nature, and that oral evidence could not be substituted for this written evidence.

Counsel goes so far as to assert that oral proof is incompetent under any circumstances, and that unless the written instrument is offered in evidence, recovery cannot be had under the claim of the petitioner, notwithstanding the rule of evidence, which has been universally accepted, laid down in Jones on Evidence (2d Ed.), Section 212, which provides, where it is shown by satisfactory proof that the written instrument has been lost or destroyed, or is beyond the jurisdiction of the court, or in the possession of the adverse party, who refuses to produce it, which is the element in the instant case, that then and thereupon secondary evidence as to the execution and existence of the written contract is competent evidence.

In the case at bar it appeal a from the evidence of plaintiff that the defendants took possession of the document at the time of its execution and retained it, and that since then, after repeated demands under the statute and otherwise, defendants not only refused to submit the instrument during the trial, but denied its execution and existence.

In determining this question it is well enough to keep in mind, as bearing upon the contention that oral proof is incompetent, that the loss or destruction of the instrument of writing, or defendants refusal to produce it, in no manner affects the validity or force and effect of the instrument of writing, for whose existence the secondary proof was offered and rejected. This instrument of writing could only be invalidated by mutual consent, by cancellation. or by final discharge of its terms. Therefore it must be admitted that the loss of the instrument, or the refusal to produce it, in no way affected the mutual obligations under the terms thereof, and, if there is a foundation for the contention of defendants’ able counsel, then the statute of frauds would bar a recovery in all cases where the instrument of writing was not produced at the trial, notwithstanding there might be no question as to its execution.

It is well settled that the statute of frauds constitutes a rule of evidence. There can be no question about this, and no issue can be taken against the proposition that the purpose of the statute of frauds was to secure the highest and most satisfactory species of evidence, as was laid down in Crawford v. Edison, 45 Ohio St., 239, 13 N. E., 80, and in Geo. J. Cramer, Inc., v. Patterson, 25 Ohio App., 130, 157 N. E., 398, as well as in many other cases, and we are well aware of what Jones on Evidence says upon this question concerning the statute of frauds.

Counsel for defendants quote from 3 Jones’ Commentaries on Evidence (2d Ed.), Section 1425, under the chapter, “Statute of Frauds,” as follows:

“It will be observed that the statute does not affect the credibility or weight of testimony, but absolutely excludes parol proof of a very large number of contracts. It is immaterial whether a large number of witnesses may have knowledge of the terms of a contract within this class or whether there are no witnesses to controvert their statements, for the reason that these statements are denied all efficacy as evidence.”

We see nothing in this paragraph wherein the statute of frauds makes an exception to the rule that secondary evidence is inadmissible to prove a lost or destroyed instrument, or one which is retained by an opposing party, who refuses to bring it into court, or who claims that it never existed. We think that the section which is quoted to support the contention of the defendants relates only to cases where, as against the statute of frauds, recovery is sought by oral proof alone, notwithstanding the provision of the statute which requires evidence in writing.

In the case at bar, when secondary evidence was offered, its purpose was to prove a written contract and the substance of its terms, and that this was sufficient to constitute a memorandum in writing under the claims of the petition and the proof we think there can be no question, under the same reasoning which this court has advanced in other cases where a mere memorandum in an escrow as to a brokerage agreement was declared a memorandum in writing, notwithstanding there was no original contract, as in the case at bar, executed by the parties or the parties to be charged therewith for the payment of the commission.

The proffer of secondary proof was not to prove an oral contract, but to show within the statute of frauds that there was a contract for the brokerage in writing, and this secondary proof in our judgment brought into existence as a legal entity in the trial below the written document itself, in one of the two ways that is provided for furnishing evidence of a written contract.

The fallacy of defendants’ contention we think lies in the theory that the secondary evidence was incompetent because its ultimate result was to show a verbal contract, whereas the prime purpose of such evidence was to restore the instrument of writing which was executed by the parties for the payment of brokerage, providing the services were performed under the terms of the agreement. These views we entertain are consistent with the theory of the rule of evidence that a document can be restored for the consideration of the court during the trial of an issue by evidence that it is lost or destroyed, and by testimony as to the substance of its provisions. We know of no ruling that would make an exception as to the statute of frauds, because the best evidence of which the nature of the case is susceptible is the rule which must be followed, and in this sense the so-called secondary evidence in the case at bar is not secondary but primary evidence, because it is the best evidence under the record of which the nature of the case is susceptible.

Defendants to bear out their contention submit the case of Warner & Co. v. Brua, 33 Ohio App., 84, 168 N. E., 571. Its applicability is claimed, because, it is asserted, under the evidence in the case at bar the services for which brokerage is sought had been fully performed before the execution of the instrument upon which recovery is sought. We copy from 33 Ohio App., 86, 168 N. E., 571, Warner v. Brua, supra:

1 ‘ The law of Ohio requires a promise to pay commission for the sale of real estate to be in writing before an action can be maintained therefor. The situation, then, here is that the parties had performed all the service without any promise in writing, and then sought at the time of the presentation of the contracts signed by the purchasers to bring themselves within the law by adding the promises in writing. The general rule is that past consideration will not support a promise. After the signing of the promises, plaintiffs did nothing toward procuring buyers or toward the sale of the property. All this work had been done prior thereto. The facts bring the cases within the rule laid down in the case of Shields v. Sterrat, 77 N. J. Law, 404, 71 A., 1129. * There being no supporting consideration for the written promise to pay commissions, the judgments [for the defendants] will be affirmed.”

We do not think this case is the controlling law in the case at bar.

Holding these views, the judgment of the lower court is hereby reversed for error in refusing to hear testimony, and in sustaining the motion for judgment for defendants, and the cause is remanded for further proceedings according to law.

Judgment reversed and cause rema/nded.

Vickery, P. J., and Levine, J., concur.  