Morrison v. Whiteside

Le Grand, C. J., delivered -the opinion of this court. This suit was brought to recover a claim for work done and materials furnished by the appellee to the appellant. The action was brought on the llthof March 1859. The pleas are, son-indebtedness, payment, and limitations. The defendant served a notice on the plaintiff to produce, at the trial of the case, the books or documents containing the [458] original entries of the account filed in the case, marked' a@= bill of particulars; also the books or documents containing-his account against James D. Morrison, from July 1st, 1851,-to January 1st, 1855, as also the books containing any other account against either James B. Morrison, or the defendant ■subsequent to that time, informing him that secondary evidence would be given of their contents. The plaintiff, to sustain his action, gave evidence by two» persons who were in the employment of the defendant as his. apprentices, the one from the year 1848 to 1853, the other from 1853 to the time of the trial, that at different times, between 1851 and 1S55, they had known the Morrisons, the defendant and his son James 0. Morrison, to order and obtain work, such as boots, shoes, &c., from the shop of the plaintiff, and that during the same time minor children and employees of the defendant had work also done in the shop of the plaintiff. It was also given in evidence, by a witness named Gorsom, that/about seven years prior to the trial, he being in the employ of the defendant, wishing to procure a. pair of boots, applied to the defendant for the money to enable him to purchase them, whereupon the defendant told’ him to go to his son James, who attended to his business; that-he did so, and received from James an order on (he plaintiff for the.boots, upon which order he procured them. After this testimony, the plaintiff offered in evidence his-ledger. This book contained several accounts, some against the defendant and some against other persons. To the admissibility of this evidence the defendant’s counsel objected,but the court overruied'lhe objection, and allowed the book, with the accounts and entries, as set out in the record, to be-given in evidence, whereupon the defendant excepted. This-constitutes the defendant’s first exception. The objection to the admissibility of the evidence being;; general, if any part of it was admissible, the court properly-overruled the objection. Budd vs. Brooke, 3 Gill, 220. The rules of Howard county circuit court are not set out-in the record, and we are therefore compelled to look to then general doctrine as to the time within which notice to pro-, [459] ■¿luce an original paper must be given, and the effect of the production on the respective parties to the suit. The general rule is, that the party desiring the production of an original entry or paper, has the right to demand it at any time before the trial is concluded, and the refusal to present the one or the other, gives to the demandant the right to offer secondary evidence of the contents. This rule is subject to the exception, that if the paper be shown to be in a place so remote from that of the trial that it cannot be produced at the trial between the time when the notice is given and (he conclusion of the evidence, such notice will not be deemed sufficient to authorize the party giving the notice to offer secondary evidence of its contents. The giving of the notice does not, however, make the paper called for evidence; to make it so, something more is necessaty. In the 563 section of his work on Evidence, Mr. Greeuleaf states the doctrine as follows: — “The production of papers, upon notice, does not make them evidence in the cause, unless the party calling for them inspects them, so as to become acquainted with their contents; in which case the English rule is, that they are admitted as evidence for both parties.” There is no evidence in this exception that-the defendant, or his counsel, inspected the ledger, and therefore the book, if admissible at all in evidence, is so, as was urged on behalf of the appellee, on the ground that it contained entries verified by the agent of the defendant. If it be conceded that the testimony of the witness, Gorsom, on the question of agency, is not very full and satisfactory, yet it is evidence tending io show the existence of an agency, and should have been passed upon by the jury. We are of opinion the court did not err in allowing the entries to be given in evidence, and accordingly affirm its ruling in this exception. In addition to the evidence contained in the first bill of exceptions, the plaintiff offered evidence by the witness, Gorsom, that, within the last year or two, he had heard the defendant say that his sons, James and Richard, attended to his books and settled his accounts. On this state of case the defendant asked the court to instruct the jury that there was no evidence [460] in the case to take it out of the statute of limitations. We do not see how this direction could have been given, in view of the testimony of Gorsom as to the agency, and the several entries at the foot of the different accounts, made by James D. Morrison. (Decided October 29th, 1861.) The evidence subsequently offered by the defendant, if believed by tbe jury, certainly was very clear and distinct, and should have concluded the case in his favor. But with this we have nothing to do; it is for the jury alone to weigh and decide upon the credibility of the evidence. Besides, the court, in granting the defendant’s second, third, fourth, fifth and sixth prayers, gave him the advantage of his evidence before the jury. If the jury found against the evidence, a new trial was the remedy, and not an appeal to this court. Judgment affirmed.