#### HARLAN & HOLLINGSWORTH *v.*THOMAS C. SMITH.

Where the fact is assumed that the property of the plaintiff came to the defendant’s possession, and was used by him, and no question is raised as to the nature and terms of the contract of purchase, a letter ordering the property to be sent was not necessary evidence, and it was not error to proceed without it.

ActioN of assumpsit, tried before PersoN, J., at the Spring Term, 1857, of Bladen Superior Court.

. One Rothwell was examined as a witness for the plaintiffs, who swore that he was the agent of the defendant to buy the machinery, for the price of which this suit was brought, and that he wrote to the plaintiffs, who lived at "Wilmington, Delaware, ordering it. The machinery came, according to order, to Wilmington, North Carolina, and was delivered by the ■witness to the defendant in good order, accepted by him, and put on board of a boat and carried to his residence, up the Cape Pear River. This witness was a machinist, and proved the quality and value of the machinery.

The defendant objected to any proof of the purchase by Rothwell, as agent, unless the letter which he wrote to the plaintiffs was produced. The objection was over-ruled, and defendant excepted.

Yerdict and judgment for the plaintiff, and appeal by the defendant.

*H. Q. Haywood*and Baiter, for plaintiff.

*Troy,*for defendant.

*271Nash, C. J.

This is a very plain case; so plain that it was not in the power of the ingenious counsel who argued it for the defendant, to cast any doubt upon it. The action is brought to recover the price of some machinery. The defendant employed a Mr. Eothwell to purchase for him the machinery in question, who ordered it, by letter, from the plaintiffs. The defendant’s counsel objected that the letter itself was the best evidence, and must be produced. The objection was over-ruled. "We do not deem it necessary to examine the doctrine of the best evidence. But very certainly, the rule does not apply to this case. *Currie*v. *Swindell,*7 Ire. Rep. 361. It is distinctly set forth that the machinery arrived at "Wilmington according to order, and was, by Mr. Eothwell, the agent of the defendantj received, and by him delivered, in good order, to the defendant, who took it to his plantation on the Cape Eear river. No special contract was made, and the money is sought, under the common count, for goods sold and delivered. Whether, therefore, the order was given by letter, or verbally, was a matter of no moment, and the production of the letter was unimportant. Suppose the plaintiffs had had the machinery lying upon the wharf at "Wilmington, and the defendant had taken it into his possession, without the knowledge or consent of the owners, could not the latter have maintained an action of assumpsit for the value of the article ? The defendant has the property of the plaintiff in his possession and use, and must pay for it. *~We*cannot conceive that, in affirming the judgment, we are -in any measure weakening the valuable rule of evidence, that the best, the nature of the case admits of must be produced; or that we are opening the door for the fearful consequences so forcibly pictured before us.

"We see no error in the judgment of the Court below.

Bee 'Cueiam. • Judghient affirmed.