Morrison v. Whiteside

Where the objection to the admissibility of evidence is general, if any part of the testimony objected to is admissible, the objection is properly overruled. The general rule is, that a party has the right to demand the production of an original entry or paper at any time before the trial is concluded, and refusal to produce gives the demandant the right to offer secondary evidence of its contents. But 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 the conclusion of the evidence, such notice is not sufficient. 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. Though testimony on the question of agency is not very full and satisfactory, yet if it is evidence tending to show the existence of the agency ' sought to be proved, it must go to and be passed upon by the jury. There being proof tending to show that a party was the defendant’s agent, and attended to his books and settled his accounts, and such agent having, within three years, made entries in the plaintiff’s books, verifying the accounts sued on, the court could not instruct the jury that there was no evidence to take the case out of the statute of limitations. It is for the jury to weigh and decide upon the credibility of evidence, and if they find against the evidence, a new trial is the remedy, and not an appeal to this court

Appeal from, the Circuit Court for Howard counly. Action, brought on the 11th of March 1859, by the appellee against the appellant, for work clone and materials furnished by the plaintiff for the defendant. Pleas, non-indebtedness, payment and limitations. The plaintiff filed a bill of particulars, being items of a shoemaker’s and sadler’s account, commencing July 15th, 1851, and ending January 1st, 1855, and amounting to $117.77, and the defendant served on the plaintiff the notice to produce, at the trial, the books or documents containing the original entries of the account filed as his bill of particulars. The terms of this notice are fully stated in the opinion of this court, and it appears to have been given oh the 20th of March 1860, the day succeeding the filing of the bill of particulars, and the trial took place on the 2ek1 of April 1860. 1st Exception. The plaintiff proved by two witnesses, his former apprentices, that, between 1851 and '1855, they had known the defendant and his son, Janies D. Morrison, to order and obtain work, such as boots, shoes, &c., from the plaintiff’s shop, and that certain of the minor e.bildren and employees of the defendant during that time, had work done in his shop. The plaintiff then proved, by Gorsom, that about seven years ago, while in defendant’s employ, wishing money to buy a pair of boots, he called on the defendant for the same, who told him to go to his son James, who attended to his business, and he did so, and received from James an order on the plaintiff for the boots, upon which order he procured them. None of these witnesses were able to identify or prove anjr of the items charged in the bill of particulars as being ordered by or charged on account of the defendant. The plaintiff then offered in evidence his ledger, containing, among many others, — - 1st. An account against the defendant, commencing January 17th, 1852, and ending December I8tb, 1852, for $23.56, at the foot of which is this entry, admitted to be in the handwriting of James D. Morrison: “The above account settled in full by note dated Jan. 11th, 1853, payable on demand.” 2nd. An account against James D. and Richard Morrison, subsequently carried to the account of James D. Morrison, commencing May 1st, 1851, and ending November 11th, 1852, for $25.66, at the foot of which was this entry, also admitted to be in the handwriting of James D. Morrison: “The above amount settled in full by note dated Jan. 11th, 1853. ” 3rd. An account against James D. Morrison, commencing March 22nd, 1853, and ending June 2nd, 1858, for $211.73, at the foot of which were several entries of credits in the handwriting of James D. Morrison, leaving a balance due of $186.36. 4th. An account against Waters & Morrison, commencing March 29th, 1855, and ending October 19th, 1856, for $59.76, at the foot of which was this entry, in the handwriting of James D. Morrison: “This account carried to the account of J. D. Morrison, Aug. 2nd, 1858. 5th. An account against the defendant, commencing Feb. 6th, 1855, and ending Aug. 27th, 1858, for $82.18, which the ledger showed to be settled in full Feb. 17th, 1859. To the admission of this book in evidence the defendant objected, but the court (Brewer, J.) overruled this objection, and allowed the accounts and entries aforesaid to be given in evidence to the jury, and to this ruling the defendant excepted. 2nd Exception. The plaintiff then further proved, 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. The defendant then asked the court to instruct the jury that the plaintiff is not entitled to recover in this case, because there is no evidence in the case to take it out of the statute of limitations; which instruction the court refused to give, and to this ruling the defendant excepted. 3rd Exception. The defendant then proved, by James D. Morrison, that from 1851 to the 31st of Jan. 1854, he conducted for his father the business of blacksmith; that his agency for his father, the defendant, which was connected with the blacksmith business alone, ceased on the 1st of January 1855, at which time the latter gave up the blacksmith business, and witness went into business with one Waters; that the accounts in the ledger given in evidence, standing in the name of James D. Morrison, were the individual and sole accounts of witness, being for work done and goods furnished on his order, and for which he was alone responsible, that they were not procured on the defendant’s credit, nor had the defendant any thing to do with them; that the balance of $186.36, (appearing in the 3rd account before stated,) was satisfied and settled by the note of witness, dated the 2nd of Aug. 1858, payable on demand, that being the amount then found to be due from the witness to the plaintiff; that this note was given by witness as his own distinct obligation, in consideration and satisfaction of the balance then due from him to the plaintiff, and that payment of this note has never been demanded of him, and that he was not then acting as the agent of the defendant. The plaintiff then offered two prayers, of which the first was rejected; but the second — “That if the jury shall believe from the evidence, that the defendant., at any time within three years before the commencement of this action, has acknowledged an indebtedness either by himself or by any agent duly authorized to make such acknowledgment, then from such acknowledgment the law implies a promise to pay said indebtedness” — was granted, and to the granting of the same the defendant excepted. The defendant also offered several prayers, based upon the testimony of Morrison, all of winch were granted, and as no question arises upon them, they need not be stated. The verdict was in favor of the plaintiff for $100, and from the judgment thereon the defendant appealed.