available. The best evidence of a letter is the letter itself. An impression copy from a copying book, or a carbon copy, is not received if the original is available. Oral testimony is necessary, however, to present, to identify a writing.

Secondary Evidence. Secondary evidence, such as a copy, is allowable only when the original is not available, as when the original is in the hands of the adverse party who does not produce it after proper notice; or when in the hands of a stranger who cannot be compelled to produce it; or when destroyed or lost; or when not readily movable; or when a public document; or when originals are numerous documents not conveniently examined.

When one party has in his possession the best evidence and fails to produce it when duly requested, the other party to the suit may present secondary evidence, and there are no degrees recognized in this case as to the secondary evidence. While a written copy of a contract or letter may exist and may seem better, nevertheless oral testimony is admissible as to the contents of the letter. The written copy will doubtless be more convincing to a jury, more effective in weight; the oral testimony is equally competent and will be accepted by the judge as evidence, the jury to determine its weight.

Inadmissible to Contradict Writing. The rule is general that, in the case of a written contract which is not ambiguous, it is inadmissible to vary, contradict, or modify it by oral, or " parole," evidence of anything which occurred at or before the time it was executed. This has been the law in England since 1771.

In case of apparent ambiguity, the court will construe it if possible and find its correct and harmonious meaning, and may allow some oral testimony as to the technical meaning of words or terms if that will assist. In the building trades there are technical practices, such as allowances. for openings for doors and windows in computing the payment for brickwork or masonry, and if not covered clearly by contract, oral testimony may be allowable to establish what is the custom. Similarly, oral testimony might be admissible to determine whether or not the prismoidal method should be used in earthwork computation.

Writing is Best Evidence. As has been stated, in proving the contents of a contract or other writing, the best evidence is the writing itself and this must be produced. Where any documentary evidence is not within the control of a party to a suit who desires its introduction, a reasonable notice to produce it should be served upon the other party to the suit (if in his control); or if in the hands of some third party, a subpœna duces tecum should be served, a summons to attend the trial and bring the desired documents. A failure of the attempt to obtain

them in this way (faithfully made) allows the introduction of secondary evidence, such as the copy-book page, or the carbon copy of a letter, or sometimes as a last resort even oral testimony as to the contents of the document. Before the secondary evidence will be allowed, however, the document must be proved to be in the hands of the other party or hopelessly lost, or to be beyond the jurisdiction of the court.

Oral Explanations. Occasionally the only writing used in connection with making a contract is a receipt, and while this may properly be supplemented by oral evidence as to what the contract was, it is sometimes difficult to determine whether such a writing is a simple receipt or is the expression in writing of a completed contract. Sometimes part only of a contract is reduced to writing; perhaps there are several papers, and some of these require to be supplemented by oral testimony to explain their connection. An offer may be made in writing and accepted orally, or vice versa. Sometimes oral evidence is introduced to set up a counter-claim.

Additional Oral Contract. Again there may be a written contract, and an oral contract upon another matter or upon a matter which possibly does connect with or infringe upon the scope of the written contract. Sometimes there is a question practically of implied warranty. In a case where a certain machine was contracted for in writing, and the purchaser was sued for payment, the purchaser offered parole evidence that there was a definite understanding and agreement (aside from the writing) that the machine "would do the work satisfactorily"; the court held that if the agreement had been for machines to do this work therein specifically described, there would have been an implied warranty, and from a similar point of view allowed the oral testimony to be offered.

Oral Proof of Illegality. Oral evidence may be presented to show that a contract signed was obtained fraudulently or under compulsion. Fraud, intimidation, illegality, want of due execution, want of capacity in contracting party, want or failure of consideration, mistake of fact; anything affecting the validity of a contract may be put in evidence under what is called the "parole" rule. It may always be shown by oral testimony that the transaction was not intended to have legal effect, or that while signed the contract or deed was never delivered.

Complete Writing Conclusive. But when a legal act is reduced into a single memorial in writing, all other utterances are immaterial. It is well established that you cannot disturb a clear meaning expressed in a writing. But if agreements are made subsequent to the written contract, oral evidence of these is clearly admissible; they are essentially new contracts. The careful engineer, however, should see to it that his contract is in definite and complete shape in writing, and further that there are no oral transactions of a sort to modify the contract, or

such as to be admissible in evidence to supplement, or in any way alter, the effect of the contract.

All doubtful questions involved in the proposition that the writing stands, are eventually for the lawyer, and the engineer should not expect to do otherwise than consult his lawyer when a fair question arises in his mind as to the admissibility of any evidence available.

Engineer's Relation to Secondary Evidence. The admission of secondary evidence, apparently contrary to the "best evidence" rule, is rather technical; nevertheless, there is a principle involved which the engineer can profitably take to heart; at the trial his lawyer will attend to the technicalities. Any evidence of apparently good quality which the engineer can secure should be ready for presentation, and he should always secure the best evidence he can find so far as his knowledge, experience, and skill allow. He may profitably act upon the principle stated by a very able law writer that all facts having probative value are admissible unless some specific rule forbids. Nevertheless it is worth while for him to have some knowledge of the rules which restrict the admission of evidence.

Best Evidence not Personal Quality. It should be understood that the standing or character of the man giving evidence has no bearing so far as the question of "best evidence" is involved. Whether evidence shall be admitted depends on the quality of the evidence and not on the character of the man. One man's evidence is as good as another's so far as its competency or admissibility is concerned. Before the jury, however, the situation is different and the weight given to any man's testimony may be much influenced by his standing in the community, by the clearness and apparent integrity of his answers, or by his demeanor while testifying.

HEARSAY

Definition. Oral evidence must be direct to satisfy the rule as to the best evidence. If it refers to a fact alleged to have been seen, it must be the evidence of a witness who says he saw it. If it refers to a fact alleged to have been heard, it must be evidence of a witness who says he heard it. If it refers to a fact alleged to have been perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner. The judge will not allow Jones to testify as to what Smith said; that is " hearsay and hearsay evidence is ruled out. Let Smith, the first man, come himself and tell what he saw or knew to be the fact; that is the best evidence. Statute Law has in some States provided that Jones may testify to what was said by Smith previous to the bringing of the suit; this is not true in many States.

Why Hearsay Evidence is Excluded. The reasons for the exclusion of "hearsay " evidence have been stated as follows: the original statement was not under oath; there was no chance for the jury to see the demeanor of the original witness; there is possibility of error in repetition and transmission; there is no chance for cross examination of the original witness. Of these the last reason is held by the best authorities to be the most important; the meat of the whole matter.

Exceptions. While, in general, the exclusion of hearsay evidence is well established there are nevertheless various exceptions which are very perplexing, at least in their application. Where what another man said is definitely the point in issue, and not the truth of what he said, evidence of what he said is direct and of course admissible. Such evidence is also admissible when what was said was part of the transaction; what is denominated the res gesto, what was said forming verbal acts which were an important part or feature of a transaction the rest of which could properly be established by evidence.

Example of Res Gestæ.

For instance, in Pennsylvania, a man sued a railroad for injuries from falling on the platform in alighting from a train. Declarations made by this man while he lay upon the platform where he fell, were allowed to go in as evidence as part of the res gesta. In Michigan and Illinois in cases dissimilar mainly in the fact that the man had been removed from the spot where the accident occurred, the evidence was not admitted; the declarations were made not during the transaction and as a part of it, but afterward and distinct from the affair. The engineer is liable to encounter similar cases where accidents of various kinds occur.

State of Mind. It is further true that what a man said may be important as showing his state of mind and become admissible for that purpose.

Necessity and Trustworthiness. It will be found that there are, first and last, many cases where hearsay, indirect testimony, is admitted. The object of a trial is to elicit the real state of the transaction, and the rules governing the introduction of testimony have relation to this end. The purpose and tendency is to secure all pertinent evidence unless its introduction would do more harm than good. And not a little evidence of the hearsay sort is admitted substantially on the combined basis of necessity and probable trustworthiness; either one alone in most cases does not suffice. As to trustworthiness, it should be understood that the term is here applied to the kind or quality of evidence, independent of the merits of the person presenting it or of individual features of a single case under consideration.

Statements of Deceased Persons. A common case illustrating necessity is where statements were made by persons afterwards deceased. In

a murder case the dying declaration of the man slain is accepted. In the shadow of death it is assumed that there is not sufficient motive to misstate, and his statement of the cause of his death may be quoted by a witness who heard it. In a similar way, where a statement was made against the interest (at that time) of him who made it, it is assumed that there is no motive for falsification, and where death or inability to bring into court creates necessity, such statements are frequently allowed to be presented by one who heard them, or if made in writing, by one who can authenticate the writing. The statement against interest, if made by a party to the suit, is in effect an "admission," reference to which will be made later.

Against Interest. Declarations of the owner of land, while in possession, in disparagement of his own title are always admissible in evidence. Sometimes evidence of this sort touches boundaries; and the declaration of a deceased may be in the form of a map, plan, survey, or the like. In one case the question at issue was the height of a dam; the declaration of the former owner, now dead, stating the height to which he had a right to build, was admissible in evidence; this height being the lower height of those in controversy and so against his interest. It is the rule, and important, that such declarations should have been made before any suit was started touching the matter involved.

Pedigree. In the matter of pedigree and family history there is often necessity for accepting the statements made by a deceased member of the family, and generally with slight risk of untrustworthiness when made previous to the suit being brought. Dependence here would be placed upon the declarant's means of knowledge.

Depositions. Where the presence of a witness cannot be secured, there are cases where his written deposition or affidavit may be taken and admitted in evidence. The conditions allowing their introduction place them beyond the engineer's functions to handle unless under instruction. Nevertheless, the affidavit of a person who witnessed an accident or knew certain facts may be very desirable to secure. The witness may be liable to forget; from motives of friendship or other persuasion he may later be willing to testify contrary to the facts. The prompt securing of his affidavit will probably forestall all such difficulties. The affidavit, in general, will not be admissible in evidence; but if, as a witness, the man who made it should deny having made it, then there might be an opportunity for its introduction to impeach his testimony. The mere existence of such a paper will often prevent a man from testifying contrary to the statements made in it. A statement signed but not sworn to may often be secured where a sworn statement would be refused, and this is almost equally good.