Landis v. . Gittlin

Barnhill, J. This cause was called for trial on 7 June 1948. Prior thereto, on 4 June, plaintiff had served on defendant notice to produce at the trial certain specifically designated orders received from Spartan Mills and orders received from certain other mills. When he was called upon at the trial to produce these invoices pursuant to the notice, defendant declined to do so on the grounds the orders were at the home office in Newark, N. J., and the notice to produce allowed insufficient time for the production thereof. The court ruled the notice sufficient and held that defendant’s failure to produce rendered secondary evidence thereof competent. In this there was no error. These were the original records concerning the subject matter of the action. Plaintiff had lone before called defendant’s attention thereto as *523 tbe basis of his claim. Defendant at no time denied their existence or the substance of their contents. If he did not have them available at the trial in support of his defense, he cannot now complain that the court permitted secondary evidence in proof of their contents. Furthermore, plaintiff was permitted to give in evidence the number, date, and quantity of each reorder he contends was sent in by the Spartan Mills. The admission of this evidence from the same witness without objection cured the former error, if error it was. Bryant v. Reedy, 214 N. C. 748, 200 S. E. 896; Leonard v. Insurance Co., 212 N. C. 151, 193 S. E. 166; McClamroch v. Ice Co., 217 N. C. 106, 6 S. E. (2) 850; Davis v. Davis, 228 N. C. 48. The plaintiff was permitted to testify concerning the contents of invoices which were not produced. But his testimony in respect to the contents of these invoices was offered in the form of statements made by him to the defendant. He told the defendant he had been to Spartan Mills and had been shown the reorders and he gave defendant detailed information as to their contents which defendant did not deny. This testimony was not incompetent either as secondary proof of written instruments or under the hearsay rule. S. v. Dilliard, 223 N. C. 446, 27 S. E. (2) 85. It was admissible without proof of prior notice to produce the original orders. In the final analysis, this case was essentially one of fact. The plaintiff offered evidence of an oral contract to pay him 5% commissions on all reorders sent in by customers secured by him. He likewise offered testimony of reorders from the Spartan Mills sufficient in amount to entitle him to commissions in the sum of $1,250. The defendant did not at any time deny the amount of these reorders. He was content to deny the contract to pay commissions thereon. The jury, in a trial free from error, has rendered its verdict on the conflicting testimony in favor of the plaintiff. The verdict and the judgment thereon must be sustained. No error.