Payne v. Miller

[73] Judgment affirmed. Pending the cause one of the defendants died, and his executrix was made a party in his stead. The jury found for the plaintiff', and to the overruling of a motion for new trial exceptions were taken. The grounds of the motion are as follows: (1) The defendants had been served with written notice to produce the following papers: “Original letters from O. H. Miller to J. A. Payne dated August 29th, 1886. All letters from same to same dated between August 29th, 1886, and September 23d, 1886. Letter from O. H. Miller to J. A. & J. B. Payne, dated September 24th, 1886, and printed circulars sent them, showing-terms of sale of gins, etc., etc. Dispatch from same to same, dated about September 28, 1886. The original guarantee furnished by 0. IT. Miller to defendants through W. F. Wynne at the time he finished putting up gin, about September 20, 1886. The original of all telegrams sent by defendants to plaintiff, and all other letters written by plaintiff to defendants about said gin in controversy.” Over objection of the defendants the court admitted in evidence a printed circular styled “Private instructions to agents.” Defendants’ counsel on the trial had a similar paper, and stated that he found it among the letters and papers handed him by his client, John A. Payne, deceased, when he employed him to defend this suit. The objections were, that the particular paper objected to was not embraced in the notice, and that it-was not proper testimony and was illegal and irrelevant. (2) Error in certain parts of the charge (see 2d headnote). (8) The court permitted W. F. Wynne to testify for the plaintiff' as to what took place between him and J. B. Payne, but not between him and J. A. Payne. The defendants’ objection to his testimony was, that Wynne was the agent of the plaintiff, and J. A. Payne, one of the defendants, was dead. (4) Verdict contrary to law and evidence. Hoyl & Parks, by Harrison & Peeples, for plaintiffs in error. W. D. Xiddoo, contra.