When, in the progress of any suit in any court in this state, either party thereto relies for its maintenance or defense, in whole or in part, on any deed, bond, note, draft, bill of exchange, letter, or any other writing alleged to have been executed, signed, or written by the adverse party, and to have been lost or destroyed, the party so relying on the same as evidence in his behalf in the trial of the cause shall not be permitted to give evidence of the contents thereof by a competent witness until said party or his agent or attorney first makes an oath to the loss or destruction thereof, and to the substance of the same.
Source: L. 1870: p. 73, § 1. G.L. § 1085. G.S. § 1321. R.S. 08: § 2502. C.L. § 6548. CSA: C. 63, § 14. CRS 53: § 52-1-14. C.R.S. 1963: § 52-1-14.
ANNOTATION
Under this section the filing of a proper affidavit lays the foundation for the introduction of secondary evidence as to the contents of a lost instrument; but where such secondary evidence is admitted, it must be clear and satisfactory as to the contents of the document involved, and if the proceeding is one for specific performance, the evidence must be strong and unequivocal. Walker v. Drogmund, 101 Colo. 521, 74 P.2d 1235 (1937).
Affidavit must show original is unavailable. The reception of secondary evidence of the contents of a writing in the absence of a showing that the original is unavailable is error. Epple v. First Nat'l Bank, 143 Colo. 319, 352 P.2d 796 (1960).
Affidavit was not sufficient to comply with this section where it was not based upon the affiant's personal knowledge of the existence of the document and his personal knowledge that it was lost. People v. Heckers, 37 Colo. App. 166, 543 P.2d 1311 (1975).
It need not be lost as long as affiant does not have power to produce. This section does not require proof that the original deed has been lost. It is sufficient if affidavit be made that the original is not in the affiant's possession or power to produce. Coleman v. Davis, 13 Colo. 98, 21 P. 1018 (1889).
The greater the value of the instrument, the more conclusive should be the proof of its existence and contents. People v. Heckers, 37 Colo. App. 166, 543 P.2d 1311 (1975).
Secondary evidence adduced to prove contents of lost instrument must be clear and convincing especially in criminal case. People v. Heckers, 37 Colo. App. 166, 543 P.2d 1311 (1975).