This section contains the nature of the case and procedural background.

Sylvania (D) hired Flanagan (P) to level off a hill so D could build a parking lot. P quoted $13 per truck hour and proceeded with the work. When D presented a bill for $25,267.50 for all the work, D refused to pay the bill. P sued D. During trail, P submitted evidence on summarized tally sheets that showed the number of trucks on the site and the hours they worked. Included in P's evidence was a summary of data on invoices and tally sheets, a number of photostatic copies of bills and invoices sent to P by other truckers for the rent of their trucks on the job site and copies of two bills sent by P to D for work done. P testified that the data contained in his summary exhibit was the same that was contained in the tally sheets. D objected to the evidence as it was secondary and thus barred by the best evidence rule. The trial court then inquired as to whether P had the tally sheets to which he replied he knew he had some at home but was not sure he had them all. The court eventually allowed P's testimony that the information contained in the invoices checked out with the tally sheets, but no evidence existed that P performed a reasonable and diligent search for the tally sheets. D objected. None of the tally sheets were ever produced at trial. The verdict went to P and D appealed.

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