Saunders v. Tuscumbia Roofing & Plumbing Co.

SIMPSON, J. — This was a suit by the appellee (plaintiff) to enforce a mechanic’s and materialman’s lien on certain property. The assignment of error is that' the court erred in admitting the record of the mechanic’s lien, because no sufficient predicate was laid for the introduction of secondary evidence. The testimony on this point was by the plaintiff, who testified that he could not find the original, and that he had hunted for the same at his shop and been unable to .find it; that he had not examined at his residence, but the last time he had seen it it ivas at his shop. Mr. Wigmore, in his work on Evidence, in referring to this question about the sufficiency of the search, says: “The discovery of the Island of Atlantis has occasioned no less arduous and no less vain efforts than the attempt to frame a fixed and just rule for the conduct of this inquiry.” And the learned author proceeds to state that there is no fixed rule, and that the inquiry must depend entirely upon the circumstances of the case. He goes on to express the opinion, based upon that of Lord Denman, that this is a matter which “should be left entirely to the trial court’s discretion, and that it is an ill judged expenditure of effort, and a waste of time for a Supreme Court to reneiv the action of.the lower court on this subject.—2 Wigmore on Evidence, §§ 1194, 1195, pp. 1407, 1412. Our court has, nevertheless, expended some effort in passing upon this question. [522] From a general review of our cases, we may gather that it is not sufficient for the witness to state that he has not seen the paper and is satisfied that it is lost; also that it is not necessary to prove that search has been made in every possible place, but it is necessary to prove that search has been made in the place where the instrument was last seen, or kept, or in the place where it is likely it would be found, if in existence.— Green v. State, 41 Ala. 419, 422; Preslar v. Stallworth, 37 Ala. 402, 406; Jernigan v. State, 81 Ala. 58, 60, 1 South. 72; Bogan v. McCutchen, 48 Ala. 493; Foster v. State, 88 Ala. 182, 187, 7 South. 185; O’Neal v. McKinna, 116 Ala. 606, 616, 22 South. 905; Burks v. Bragg, 89 Ala. 204, 206, 7 South. 156; Laster v. Blackwell, 128 Ala. 143, 147, 30 South. 663; Stuart v. Mitchum., 135 Ala. 546, 550, 33 South. 670. It is recognized in several of the cases cited that much depends upon the particular circumstances of each case. — The Foster Case, supra.. In Jernigan Case, supra, Stone, C. J., says that “a material inquiry is whether or not there was a probable motive for withholding this highest and best evidence. Whenever the court is able to answer this inquiry in the negative, less evidence will satisfy its conscience. In the Bogan v. McCutchen Case, supra, stress is laid upon the infirmities of verbal declarations in proving lost papers. In another case where it was sought to prove (by parol testimony) dying declarations (which had been reduced to writing), the court gives as the reason of the rule requiring proof of the loss of the writing “the possibly uncertain and inaccurate memories of witnesses.”—Boulden v. State, 102 Ala. 78, 85, 15 South. 341. And in a case in the Supreme Court of Texas it is held that less evidence is required to let in secondary evidence where it consists of an authenticated copy of the original, then where it is a matter to be proved by parol; the court saying: “The reason for the distinction in the construction of the affidavit in such case, and one made to allow parol proof of the contents of an unrecorded deed, is obvious.”—Foot v. Silliman, 77 Tex. 268, 271, 13 S. W. 1032. The proof in the present case was sufficient, and the court properly permitted the introduction of the record of the mechanic’s lien. [523] Assignments 2, 3, 4, and. 5 relate to supposed discrepancies between the lien, -filed in the office of the probate judge, and the status of the suit as to parties. These cannot be considered because the said lien is not set out in the bill of exceptions. ' It is true that, with or without her knowledge and consent to the doing of the work and furnishing material, her property might bé made subject to the lien, if it could be proved that her husband was her agent, clothed by her with the power and authority to make said contracts, and that the contract in question was made by him as agent for her. As there was no direct proof of the fact that the husband was acting as agent of the wife in making repairs upon her property, the jury was entitled to all the evidence which could shed any light on that question; and the questions to the witness Saunders, and answers thereto, whether he sold the property for his’ Avife, and as to who employed the men to build the laundry, and as to what he did Avith the purchase money, Avere properly admitted for that purpose. Agency may be proved by the acts and conduct of the parties.— Tenn. River Trans. Co. v. Kavanaugh Bros., 101 Ala. 1, 11, 13 South. 283. The question as to whether the husband conveyed the property to his Avife was proper, for the purpose of showing that the property belonged to the Avife. The question to the Avitness Saunders as to who Avrote the deed had no bearing whatever on any issue submitted to the jury, and Avhile it was irrelevant yet it is clear that it could not in any Ava.y have affected the verdict on the issues submitted to the jury. Consequently its: admission was not reversible error.—Borland v. Mayo, 8 Ala. 104, 111, 112; Parsons v. Boyd, 20 Ala. 112, 121; Frierson v. Frierson, 21 Ala. 549, 555; Seabury v. Stewart & Easton, 22 Ala. 207, 220, 58 Am. Dec. 254; Meyer v. Clark, 40 Ala. 259, 267. The charges refused were based entirely on the necessity of the agency of Saunders in making the contract for repairs; and from an examination of the charges giA7en by the court, on' request of defendant, we find that they contained the substance of the charges refused (Avith the exception of two to the effect that there was no proof of certain things, which Avas a matter for the [524] jury) and the general charge. Consequently there was no error in refusing them. There was no error in the refusal of the court to give the general charge requested by defendant, as it was a question for the jury to determine, from all of the evidence, whether or not Saunders was acting as the agent of the defendant in contracting for the work and material. The judgment of the court is affirmed. Affirmed. Weakley, C. J., and Haralson and Dowdell, JJ., concur.