We intimated on the argument, that the objections embraced in the first five points of the defendant’s counsel were untenable, and we required no notice of them on the part of plaintiff’s counsel.
The sixth point of défendant’s counsel relates to the finding of the referee, on the subject of interest. He maintains, that as no account was to be made out or rendered, the defendant was not, therefore, chargeable with interest. As the court remarked in McMahon v. The N. Y. and Erie R. R. Co., (20 N. Y., 469), “ the old common law rule, which required that a demand should be liquidated, or' its amount in some way ascertained, before interest could be allowed, has been modified by general consent, so far as to hold, that if tlie amount is capable of being ascertained, then it shall carry interest. It was the duty of the defendant in this case, being the debtor of the plaintiff, to ascertain- the amount of his debt. This could easily have been done, if he intended to pay lor the services rendered to him by the plaintiff, which he was bound to do on their completion. I think, therefore, the exception to this finding of the referee, would be untenable, even if it was properly made. But it is not properly made. The exception is not specific enough. It is a general exception to the finding. If the error was in allowing interest for too long a period, the exception should have stated from what time it should be computed; so as to give the plaintiff an opportunity of remitting the excess, and thus avoid the consequences of the error. (McMahon v. The N. Y. and Erie R. R. Co., 20 N. Y., 470.)
[The Court then disposed of some- minor exceptions, wMch are not important to be noticed here.]
. Judgment affirmed.
II. The other action was brought by Dewitt C. Graham, and James S. Carpentier, as executors of the will of David Graham, and was to recover for professional services- rendered by their testator to the defendant, in the same matters as in the above suit of John Graham. Much of the evidence in the two *125cases was identical. Among other things offered by the defendant in both cases was evidence of the contents of letters of David Graham, which was objected to and overruled in both cases.
Harison & Waring, for the appellants. Oarpentier & Beach, for the respondent.The following was the introductory examination of the defendant. Q. Have you received any letters or notes from David Graham? A. I have received a letter from Mr. David Graham in reference to this business. Q. How many notes ? A. Two or three. Q. Where are those notes? A. I have looked for them among my papers, and cannot find them. Q. What were those letters in reference to ? A. Money matters mostly. Q. Can you state the contents of them ? A. Ho; I could not state the precise'words, but think I could give the substance perhaps. Q. Will you state the substance of them, sir?
This question was overruled, and the defendant’s counsel excepted.
By the Court.—Clerke, J.We see no better reason for disturbing the findings of fact in this case, .than in that in which John Graham is plaintiff. The exceptions in this case, worthy of any consideration, are, except one of them, similar to these in the other, and must receive the same disposition. The exceptions, have been treated by the counsel in both cases as similar, except that relative to the ruling, rejecting parol evidence of the contents of David Graham’s notes to the defendant. While admissions made by David Graham could not bind John Graham, they would bind himself, and his representatives. The only question, therefore, on this point, is, whether sufficient proof of the loss of the notes was given to allow secondary evidence of their contents. Secondary evidence-is not admissible, if by reasonable diligence the original could have been produced. The degree of diligence depends on the nature of the transaction to which the paper relates, and other circumstances. The sufficiency of the proof of the loss is a preliminary point, addressed to and determined by the court exclusively,. and upon which it has to pass in view of the peculiar features, which characterize each case as *126it arises. In the case before us the witness testified that he had looked for the notes among his papers and could not find them. He did not say where he had made the search, or that he had made a diligent search; he gave no particulars, ■ and did not state whether he believed they were lost. The referee, who had the witness before him, was, undoubtedly, the best judge of the reliability of this preliminary proof; and he was satisfied that there was not sufficient proof of the loss of the notes to admit secondary evidence of their contents. We cannot say that he erred in excluding it. I think the judgment should be affirmed, with costs.
Judgment affirmed.