Burks v. Bragg

SOMERVILLE, J. 1. The defendant testified that, to his “ best recollection,” the contract of renting the storehouse was reduced to writing at the time it was entered into between him and the agents of the plaintiff; and while he asserted that the writing had been “misplaced,” and that he had made “diligent search” for it without finding it, and “thought it was lost or destroyed;” yet he showed the contrary to be true, by the contradictory admission that “ he was not prepared to say it was lost or destroyed,” and that it was probably among certain private papers in his possession, which he had carefully packed away for safe-keeping, and which, he confessed, he had neglected to examine. The court clearly committed no error, under these circumstances, in refusing to allow secondary evidence as to the contents of the written lease. 2. This question as to secondary evidence was one exclusively for the determination of the court. There could have been no injury, therefore, in allowing the plaintiff’s counsel to ask. the witness, “if he would swear that there was no possible chance to find the paper,” or in requiring this question to be answered. The test implied by the interrogatory may have been a fallacious one, but it was propounded on cross-examination, and the decision of the court manifestly did not rest on the answer elicited ■ by it, but on the other admitted facts, which were perfectly conclusive of the point decided. 3. No duty devolved upon the landlord to make any repairs on the premises, unless there was an agreement to make them. The tenant would take the store-house at his own risk, as to fitness for habitation or use, whatever its condition may have been at the time.— City of Lowell v. Spaulding, 50 Amer. Dec. 775; note, 776; Fisher v. Lighthall, 54 Amer. Rep. 258. The onus, then, was on the defendant, as tenant, to prove such alleged agreement to repair, by legal and competent evidence. The note given for rent contained no such condition. The written lease presumptively did not. The only legal mode of showing the contrary was, either by producing the lease itself, or proving its contents by secondary evidence. The writing was not produced. Its contents [207] could not be proved by parol, because its absence was not satisfactorily accounted for by proof of its loss or destruction. It follows that tbe court properly excluded all tbe evidence tending to prove a stipulation in tbe lease tbat tbe plaintiff would make repairs. And necessarily there was no error in refusing to allow evidence of any damages suffered by tbe defendant in the destruction of his goods by rains, caused by a failure to make such repairs. 4. The “reason why” the defendant did not make a claim for such damages, when he executed the note sued on, in the above view of the case, was immaterial, to say nothing of the objection that it was but an attempt to elicit evidence of an uncommunicated motive for his silence, which was not admissible.—Ball v. Farley, 81 Ala. 288; McCormick v. Joseph, 77 Ala. 236. The rulings o£ the court are free from error, and the . judgment must be affirmed.