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Best Evidence Rule-Unsigned Carbon Copy of Letter As Duplicate Original - Parr Construction Co

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Best Evidence Rule-Unsigned Carbon Copy of Letter As Duplicate Original - Parr Construction Co Maryland Law Review Volume 20 | Issue 1 Article 5 Best Evidence Rule-Unsigned Carbon Copy of Letter as Duplicate Original - Parr Construction Co. v. Pomer Robert E. Powell J. William Schneider Jr. Follow this and additional works at: http://digitalcommons.law.umaryland.edu/mlr Part of the Legal History, Theory and Process Commons Recommended Citation Robert E. Powell, & J. W. Schneider Jr., Best Evidence Rule-Unsigned Carbon Copy of Letter as Duplicate Original - Parr Construction Co. v. Pomer, 20 Md. L. Rev. 50 (1960) Available at: http://digitalcommons.law.umaryland.edu/mlr/vol20/iss1/5 This Casenotes and Comments is brought to you for free and open access by the Academic Journals at DigitalCommons@UM Carey Law. It has been accepted for inclusion in Maryland Law Review by an authorized administrator of DigitalCommons@UM Carey Law. For more information, please contact [email protected]. Comments and Casenotes Best Evidence Rule - Unsigned Carbon Copy Of Letter As Duplicate Original Parr Construction Co. v. Pomer' The plaintiff Construction Company brought suit against the defendant Construction Company and its president to recover the balance due under an oral contract to perform certain excavation work at a price of thirty-five cents per cubic yard, being unable to agree as to the actual quantity which plaintiff had excavated. The defendant engineer estimated 12,673 cubic yards, whereas the plaintiff esti- mated 18,000 cubic yards. The plaintiff agreed with the defendant to refer the dispute to one Matz as an impartial arbitrator. The issue here in question concerns the admissibility in behalf of the plaintiff of an unsigned carbon copy of a letter from Matz to the defendant giving Matz's estimate of the quantity of earth excavated as 14,340 cubic yards. After a previous effort to introduce the copy into evidence, the plaintiff called the defendant's president as a witness and had him identify the carbon copy as a copy of the letter received by him. The defendant objected to the ad- mission of the copy on two grounds: first, that it violated the best evidence rule; and second, because the arbitrator was not present to testify as a witness and explain the method used in making his calculation.' The trial court overruled the defendant's objections and admitted the letter into evidence. The Court of Appeals, in affirming the trial court said: "The objection based on the best evidence rule is without merit. (Defendant's president) was called as a witness by (the plaintiff) and identified the unsigned carbon copy as a copy of the original letter received by him. * * * A carbon copy of a letter is considered to be a duplicate original; and, as such, it3 ' constitutes primary rather than secondary evidence. The court appears to have based its holding upon two alternative grounds: (1) that the unsigned carbon copy 1217 Md. 539, 144 A. 2d 69 (1958). 2 Only the first objection, in regard to the best evidence rule, falls within the scope of this note. 8 Supra, n. 1, 542. 1960] PARR CONSTRUCTION CO. v. POMER 51 was admissible as a duplicate original; and (2) that the defendant's president had admitted that the carbon copy was accurate and authentic. In general terms, the Best Evidence Rule is one requir- ing the production of the best evidence obtainable in ac- cordance with the nature of the case.4 As it exists today, the rule applies only where writings are offered in evi- dence,' and so McCormick states the rule to be that: "[I]n proving the terms of a writing, where such terms are material, the original writing must be pro- duced, unless it is shown to be unavailable for some reason other than the serious fault of the proponent." Following the view expressed by this rule, the original document or writing is admitted as primary evidence of the terms contained therein, and any other evidence, unless given the status of a duplicate original, is considered to be secondary evidence.7 The instant case appears to expand the duplicate original rule to include unsigned carbon copies. At the inception of the original document rule, the most reliable method of reproduction was hand copying." There- fore, all copies were susceptible to the possibility of human error and production of the original document was strictly required.9 However, with the advent of modern machine reproduction methods, the courts have been faced with the problem of determining what methods of reproduction will create documents that can be considered duplicate originals 'TtAyE, PRELIMINARY TREATISE ON EVIDENCE AT COMMON LAw, 489 (1898); 3 'BLcKSTONE, COMMENTARIES, (1765) 368; MCCORMICK, EvIDENCE, (1954), 408, § 195. 'McCoRMICK, op. cit., ibid., 409. 0 Ibid. 7 Primary evidence is the best evidence obtainable and secondary evidence is that which may be admitted in the absence of the best evidence only when a satisfactory excuse for such absence has been given. Anglo-Ameri- can Packing and Provision Co. v. Cannon, 31 F. 313 (C.C.A. Ga., 1887); U.S. v. Reyburn, 31 U.S. 352 (1832). It is noted that in most American jurisdictions there exist certain preferences in secondary evidence where such is admissible. The problem of preference among various kinds of secondary evidence is outside the scope of this note. It Is involved in Robinson v. Singerly Pulp Co., 110 Md. 382, 72 A. 828 (1909). For a more complete discussion see 4 WIGMORE, EVIDENCE (3rd ed. 1940) §§ 1265-1280; 2 JoNEs, EvDEN CE, §§ 859-862 (2d ed. rev. 1926); McCoRMICK, EVIDEN E (1954), 421, § 207; Note, Degrees of Secondary Evidence, 38 Mich. L. Rev. 864 (1940). 8 For detailed historical development see 4 WIOMoRE, EVIDENCE (3rd ed. 1940) §§ 1177-1179, 1 JONES, EVIDENcE (4th ed. 1938) § 209. 'A party claiming a right resting upon a document was required to produce the document or lose his claim. Thomas of Utred v. Anon, Y.B. 24 ed. III, fol. 24, P1. 1 (1350). MARYLAND LAW REVIEW [VOL.. XX and be admissible as primary evidence. Due to their vary- ing degrees of reliability, letterpress copies ° and photo- graphic copies" have been generally held to be secondary evidence and inadmissible without accounting for the orig- inal, whereas printing press copies are uniformly held to be duplicate originals, and, as such, primary evidence2 if printed from the same type at the same time. The holdings are not so well-defined in the case of car- bon copies. It is generally stated that for such a copy to be given the status of a duplicate original, the writer must have so intended." As a corollary, it has often been indi- cated that such intent cannot be found unless the copy is signed as well as the original. 4 Recognizing these views McCormick, in discussing the use of carbon copies, says: "... Here the copy is made by the same stroke of the pen or pencil as the original, and there is an analogy to the practice of signing counterparts where each copy was intended to be an equal embodiment of the con- tract or other transaction. Indeed, today counterparts usually consist of an original and one or more carbon copies, all duly signed in multiplicate. What makes them counterparts is the signing with intent to make them equal."' 5 However, it cannot be said that the majority of courts require that the copies be counterparts in the manner indi- cated by McCormick, since many courts have admitted copies without making any mention as to whether they are signed or not." It may well be that they were, but none- 10Marsh v. Hand, 35 Md. 123, 127 (1871) ; Spottiswood v. Weir, 66 Cal. 525, 6 Pac. 381 (1885) ; Chesapeake and Ohio Ry. Co. v. F. W. Stock and Sons, 104 Va. 97, 51 S.E. 161 (1905) ; Westinghouse Co. v. Tilden, 56 Neb. 129, 76 N.W. 416 (1898). Cf. McAuley v. Siscoe, -110 Kan. 804, 205 P. 346, 347 (1922), which appears to express a more liberal view. n Hensel v. Smith, 152 Md. 380, 136 A. 900 (1927) ; Union Cent. Life Ins. Co. v. Mendenhall, 183 Ark. 25, 34 S.W. 2d 1078 (1931) ; Cohen v. Elias, 163 N.Y.S. 1051, 176 App. Div. 763 (1917). 12People v. Chicago R.I. and P.R. 0o., 329 Ill. 467, 160 N.E. 841 (1928). '2cCnOMIcK, 8upra, n. 4, 419-420, § 206; Lockwood v. L. & L. Freight Lines, 126 Fla. 474, 171 So. 236 (1936) ; McDonald v. Hanks, 52 Tex. Civ. App., 140, 113 S.W. 604 (1908). 1"Oberlin v. Pyle, 114 Ind. App. 21, 49 N.E. 2d 970, 972 (1943) ; Inter- national Harvester Co. of America v. Elfstrom, 101 Minn. 263, 112 N.W. 252 (1907) ; Chrismer v. Chrismer, 103 Ohio App. 23, 144 N.E. 2d, 494, 499 (1956) ; Morrow v. State, 190 Md. 559, 562, 59 A. 2d 325 (1947) ; Lockwood v. L. & L. Freight Lines, supra, n. 13. 15 McCoRMICK, supra, n. 4, 419-420. 16Massachusetts Bonding & Ins. Co. v. State, 82 Ind. App. 377, 149 N.E. 377, 384 (1925) ; Gus Dattilo Fruit Co. v. Louisville & N. R. Co., 238 Ky. 322, 37 S.W. 2d 856 (1931) ; Carter v. Carl Merveldt & Son, 183 0kla. 152, 80 P. 2d 254 (1938) ; Totten v. Bucy, 57 Md. 446 (1882) ; Goodman v. Saper- stein, 115 Md. 678, 81 A. 695 (1911) ;'See also 65 A.L.R. 2d 342, 355 (1959). 1960] PARR CONSTRUCTION CO. v. POMER 53 theless the courts have not all drawn the distinction; some seem only to require that the copies be created simul- taneously. 7 The Maryland court has unquestionably given the car- bon copies which have come before it the status of duplicate originals.
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