Neville Construction Co. v. Cook Paint & Varnish Co.
United States Court of Appeals for the Eighth Circuit
671 F.2d 1107 (8th Cir. 1982)
Neville Construction Co. (plaintiff) used Coro-foam insulation made by Cook Paint and Varnish Co. (defendant), relying on a Cook brochure describing the product as flame retardant. After the insulation was installed, a fire destroyed Neville's building, along with the brochure itself. Neville sued Cook for negligence and breach of warranty. At trial, Neville's principal testified — over Cook's objection — about the brochure's flame-retardant claim, and the jury found for Neville. Cook appealed, arguing that Neville should have introduced a similar surviving brochure rather than relying on testimony, since that brochure would have been better evidence.
Whether there are degrees of secondary evidence, such that one form of secondary evidence must be preferred over another to prove the contents of a lost or destroyed writing.