Jordan v. Austin

ANDERSON, J. The defendant did not testify that Faulkenberry and the other man saw him try to work the mare when she refused'. He merely stated that they were working with him at the time. The trial court should have sustained the objection to so much of plaintiff’s counsel’s argument as stated, “Why did not the defendant have Faulkenberry and the other witnesses here who worked for him and saw him try to work the mare.” — Morris Hotel Co. v. Henley, 145 Ala. 52, 40 South. 52; Gross v. State, 68 Ala. 476; E. T. V. & G. R. R. v. Bayliss, 75 Ala. 466. While, as a rule, there may be an inference unfavorable to the withholding of evidence, this rule does not obtain where the evidence is equally as accessible to both parties. — Ethridge v. State, 124 Ala. 106, 27 South. 320; Mann v. State, 134 Ala. 20, 32 South. 704; Bates v. Morris, 101 Ala. 282, 13 South. 138. Nor can there he an unfavorable inference against a party for the failure to produce a witness whose testimony would be simply cumulative. — :Jones •on evidence, § 18. The defendant and his daughter had both testified to the warranty and the failure of the mare to work, and the testimony of his wife on the subject would have only been cumulative. Counsel should not have commented on the failure of the defendant to prove these facts by his wife also, and the trial court erred in not sustaining the defendant’s objection to this árgument. It may he that when the comment relates to a nouproduced witness, who could only support an examined witness as to an immaterial fact, it would be error without injury. — Lide v. State, 133 Ala. 43, 31 South. 953. The absent witness referred to, however, in the present case, and their testimony as charged in the argument, related to material facts in the case. It was competent for the plaintiff to show that he had written defendant demanding payment of the note, and [590] that he received no reply. Defendant testified that he had written the plaintiff complaining of the mare and offering to restore her, and claimed a rescission. The fact that plaintiff had written defendant to pay the note and he failed to reply was contradictory of defendant’s theory of an offer to return the mare and of a rescission of the sale, as well as the contention that she did not come up to the plaintiff’s warranty, if any there was. A proper predicate was shown for the proof of the contents of the letters written by plaintiff to the defendant, as the plaintiff testified to addressing and mailing them to defendant, and, as the defendant denied getting them, a notice to produce was unnecessary. — 2 Wigmore on Evidence, § 1203, snbd. “b.” There was no error in permitting plaintiff to show by defendant’s witnesses what became of the mare, as the fact that defendant traded" her or permitted his son to do so was a circumstance in determining whether or not defendant was entitled to rescind the sale. Charge 1 was properly refused. The guaranty that the mare was sound would not be a fraud unless the plaintiff knew of her unsoundness. Charge 2 should have been given (section 5860. Code 1907), but the error in refusing same was cured by the finding of the jury for the plaintiff. .Charge 3 asserts the law, and is fully covered in discussing the argument of counsel. There was no error in the refusal of defendant’s other requested charges. The judgment of the circuit court is reversed, and the cause is remanded. Reversed and remanded. Dowdell, C. J., and Simpson and Mayfield, JJ., concurring.