Bryant v. Stilwell

• Citation: 24 Pa. 314
• Parties: Bryant versus Stilwell.
• Decision Date: 01 May 1855
• Court: United States State Supreme Court of Pennsylvania

24 Pa. 314

Bryant versus Stilwell.

Supreme Court of Pennsylvania.

ERROR to the Common Pleas of Susquehanna county.

COPYRIGHT MATERIAL OMITTED

Little, for the plaintiff in error.—The plan was a part of the original contract, and notice should have been given to defendant to produce it before testimony was given in relation to it: 7 Barr 23; Tidd 803; 1 Greenleaf 560; 1 Stark. Rep. 225. 2. The defendant should not have been prejudiced for refusing to permit a stranger to the controversy, a selected witness, to go through his house. 3. From the mere presence of the defendant in the house whilst the work was in progress, no presumption to his prejudice should have been drawn: 5 Watts 460, Young v. White. 4. The plaintiffs agreed to do their work well; and if the paint should not have been on at the time it was, it should have been postponed: 10 Watts 110; Chitty on Con. 630; Platt on Cov. 582. The doors should have been removed out of the house whilst the plastering was being done, especially as the work was delayed: 11 Ser. & R. 319; 2 Id. 415; 8 Id. 333. As to the floors, the plaintiffs should have remonstrated against injury to the floors from the plastering.

Jessup, for defendants in error.—The plan had been in the possession of the defendant, and on being called on for it before the arbitrators, he said he did not know where it was. Notice to produce it was therefore unnecessary. Whether its loss was sufficiently proved was a question for the court: 9 W. & Ser. 77. The evidence of refusal to permit an examination of the building was proper.

The opinion of the Court was delivered by BLACK, J.

This action was on a written agreement, by which the defendant below promised to pay the plaintiffs a certain sum for building a house agreeably to specifications, and a working plan or draft, which are referred to and made part of the contract. The defense is, that the work was not done according to the agreement.

1. The plaintiffs on the trial produced the written contract and the specifications, but they did not produce the plan nor give any legal excuse for its non-production.

The Court permitted a witness to testify that the work had been done according to the plan, except where the defendant himself desired to change it, and other testimony beside this was given concerning the plan. This was proving part of a written contract by parol. Maps, surveys, and drawings are not to be distinguished from other papers in this respect. They are the best evidence of what they contain. A party who withholds them when he ought to produce them, and attempts to supply their place by secondary evidence, is liable to the same presumption against him of trying to suppress the truth as he would subject himself to by withholding paper writings. They can be brought into Court as easily, an accurate knowledge of them by the jury is as necessary to the purposes of justice, and the probability that a witness who undertakes to describe them from memory will fail to do it correctly is much greater. Indeed they are always resorted to by the parties, for the very reason that no description in words can adequately express their ideas. As the plan in question was part of the contract under which the house was to be built, it should have been forthcoming when the agreement was offered. But no objection to its non-production was made then.

We hold, however, that any parol evidence at a subsequent stage of the trial touching the plan was inadmissible.

2. Before the trial the plaintiffs sent a person to examine the house, so that he might be able to testify how the work had been done. The witness frankly explained what he came for, and the defendant refused to let him go through the house for such a purpose. The evidence of this transaction was objected to, but the Court admitted it. The admission of it is complained of here because it was calculated to prejudice the minds of the jury against the defendant's cause. Doubtless it would have that effect; and so it ought to have. To smother evidence is not much better than to fabricate it. A party who shuts the door upon a fair examination, and thus prevents the jury from learning a material fact, must take the consequence of any honest indignation which his conduct may excite. The presumption in odium spolia toris is perfectly legitimate. It is so natural and so just that it is a part of every civilized code.

We think this evidence most clearly admissible, and we certainly would not have found fault with the judge if he had gone further and instructed the jury that it afforded some ground for supposing the whole defence to be unfair. It ought to be understood that where one party has the subject-matter of the controversy under his exclusive control, it is never safe to refuse the witnesses on the other side an opportunity to examine it, unless he is able to give a very satisfactory reason. Here there was no ground to believe that the witness would misrepresent what he might see. If the defendant had...