Williams v. Case

Mr. Justice Walker delivered the opinion of the Court: It is urged that the court below erred in rejecting evidence of the amount of an account sued on in the county court, bv appellee against appellant. The latter called the deputy eountv clerk, who testified that lie had searched for the account, and was unable to find it. He then called a witness, who testified that he was familiar with the account filed in that suit, and asked him ivhether the account in this suit was the same as the account filed in that, but the.court below rejected the evidence. In the first place, the proper foundation was not laid for the admission of such evidence. The deputy clerk testified that, “ I have examined the files in the county court, and can not find the papers in that case. They are not in the office. I am inclined to think that Mr. Browning, who was attorney for David M. Case, has the papers.” He does not say how extensive the search was which he made, whether it was full and complete in all places where they would be probably found, or whether the search was but slight; whether it was diligent and earnest, or but trivial and partial. Hor does appellant state that he had called on Mr. Browning, to learn if he had the papers. The deputy clerk believed that Browning had them, and this was sufficient to require him to be sought, and to have learned whether they were in his possession, and if so, to have compelled him to produce them, if necessary. Again, appellant did not explain in what the two accounts differed, and what he expected to show by the witness, if the accounts did differ, that the court could see whether the evidence was pertinent to the issue being tried. The one account may have had dates to each item, and the other not, and that would have been a difference, but not of the slightest importance. So, if there was a slight difference in the amounts, there was no error in rejecting this evidence. The other objections to the exclusion of evidence were not well taken. The damages proposed to be proved were too remote and uncertain to form a basis of damages for a set-off to appellee’s claim. As to whether the jury have found the proper sum for appellee, it is only necessary to say that the evidence is conflicting, and the verdict is npt clearly against the evidence, if it does not preponderate in its favor, and we will not disturb it. The judgment of the court below must be affirmed. Judgment affirmed.