Central Soya Co. v. Henderson

Citation208 A.2d 110,99 R.I. 388
Decision Date16 March 1965
Docket NumberNo. 10690,10690
PartiesCENTRAL SOYA COMPANY, Inc. v. Evelyn K. HENDERSON et al. Ex.
CourtRhode Island Supreme Court

Edwards & Angell, Knight Edwards, Ernest N. Agresti, V. Duncan Johnson, Providence, for plaintiff.

Abedon, Michaelson & Stanzler, Milton Stanzler, Richard A. Skolnik, Alvin N. Biener, Providence, for defendants.

ROBERTS, Justice.

This action in assumpsit was brought to recover from the defendants, as guarantors, a portion of the indebtedness of the principal debtor. The matter was tried to a justice of the superior court sitting with a jury, who denied the plaintiff's motion for a directed verdict. The jury then returned a verdict for the plaintiff in the amount of $15,000. The trial justice thereafter denied the defendants' motion for a new trial and denied the plaintiff's motion for the entry of judgment notwithstanding the verdict but granted its alternate motion for a new trial on the question of damages subject to the defendants' consent to an additur. The plaintiff and the defendants are now in this court prosecuting their respective bills of exceptions.

The record discloses that for some time prior to 1960 defendants were engaged in raising poultry for market, the business being incorporated as Shore Road Live Poultry Company, hereinafter referred to as Shore Road. It further appears that in the conduct of that business they occasionally purchased feed from C. Fred Lincoln, hereinafter referred to as Lincoln, who conducted a grain business in Mystic, Connecticut. The defendants concede that in August 1960 they executed an agreement in writing which on its face purports to guarantee the payment to plaintiff, a manufacturer of poultry feeds, of the indebtedness of Lincoln up to the amount of $30,000.

At the opening of trial defendants were granted permission to plead specially to the declaration out of time. The special plea alleged, in substance, that defendants executed the instant agreement pursuant to an understanding that they were guaranteeing the indebtedness of Shore Road; that at the time of such execution the identity of the principal debtor had not been set out in the instrument; that when plaintiff came into possession of the instrument it wrongfully inserted the name of Lincoln as the principal debtor; and that defendants did not become aware of this substitution of the principal debtor until after April 5, 1963. The defendants thus put into issue the question whether they had, in executing the instrument, intended to become liable for the indebtedness of Lincoln in the amount stated therein.

To prove the amount of indebtedness of Lincoln, plaintiff put into evidence thirty-seven trade acceptances, so called, each of which on its face disclosed acceptance by Lincoln. Each such trade acceptance appears toj be payable ninety days after its date of execution and, exception the first in chronological order, bears no indicia of payment, demand of dishonor. The one acceptance referred to above has on its face a penciled notation which, according to subsequent testimony, reflects a credit for part payment thereof. This testimony was also to the effect that whenever payments were made on the Lincoln account, they would be credited to the oldest outstanding trade acceptance.

Evidence to establish the amount of the principal indebtedness was adduced through Charles F. Sullivan, who testified that he was employed by plaintiff as a credit manager, in which capacity he supervised accounts of plaintiff's customers in the eastern division, so called. He testified further that he was familiar with the credit rating and condition of all accounts under his supervision and that all of the trade acceptances put into evidence remained unpaid. Refreshing his recollection by reference to a summary of the items contained in the Lincoln account, he testified that the total amount of the indebtedness was $64,065.08 and that no payments had been made by defendants on the principal indebtedness.

The defendants argue that it was error to admit the trade acceptances into evidence in that it violated the best evidence rule. They contend that the amount of the principal indebtedness to which the guarantee applies ought to be proved by plaintiff's books of account wherein would be disclosed evidence of payments as well as the balance due thereon. The pertinence of the best evidence rule frequently depends upon the posture in which the claim of the plaintiff is presented. In cases for the enforcement of guarantee contracts, it is the obligation of the plaintiff to establish clearly the amount of the principal indebtedness to which it contends the guarantee has application.

Because we take the view that these trade acceptances were the original records of the indebtedness alleged to be guaranteed by defendants, their admission did not violate the best evidence rule. The situation here is not identical with that in Edward Wilkinson & Co. v. Universal Safety Ash Tray Co., R.I., 133 A. 658. The evidence proffered in that case consisted of time sheets, the content of which was data copied from time cards of employees. In this case the trade acceptances reasonably may be equated with the missing time cards in that case.

During cross-examination the witness Sullivan disclosed that he had corresponded with defendants and that he had in his possession at his motel records of plaintiff's dealings in pertinent matters. He testified further that plaintiff employed J. Mark Rieser as a salesman, who in the eastern division engaged in promotional work among poultry raisers in behalf of plaintiff's product. After plaintiff rested, on defendants' motion a subpoena duces tecum issued requiring plaintiff to produce certain correspondence, the petition for the subpoena specifying four classes of correspondence sought. The subpoena was quashed on the motion of plaintiff. The defendants summoned Rieser, and during his examination the court sustained numerous objections to the introduction of correspondence and to allegedly leading questions put to Rieser by defendants. The defendants now prosecute exceptions to the rulings of the court which precluded such interrogation of Rieser by way of leading questions and to the ruling of the court quashing the subpoena duces tecum in its entirety.

The defendants sought to introduce two letters sent them by Rieser which, on plaintiff's objection, were excluded. The first of these was dated May 20, 1961 and was marked as defendants' exhibit B for identification. Therein Rieser stated: 'We will instruct our Harrisburg office to carry Thomas A. Henderson III, T. A. Shore Road Poultry Co., as a commercial account. * * * We will issue you weekly quotations on our Rooster and Broiler feeds, and we will bill you from signed delivery receipts furnished to us by the Lincoln Grain Co., Mystic, Conn. It will be your responsibility to be certain you receive what you sign for on the delivery receipt. So, be certain to have your farmers check these deliveries. You will also be billed on the price sheet in effect on the date you receive the feed. If there should be any errors in the billing of this feed, kindly notify me at once, and I will see that the error is corrected. * * * We will maintain monthly tonnage records on your entire account. This will cover shipments to your own farms, as well as customers you may secure for us. As a commercial acct., you will receive monthly payments, on this combined tonnage of $2.00 per ton. As a commercial acct., you will also enjoy dealer privileges of booking feed requirements when we feel it will be advantageous to you. An adequate line of credit has been established for you, but we will, from time to time, ask you for new financial statements.'

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6 cases
  • Special Investigation No. 244, In re
    • United States
    • Maryland Court of Appeals
    • May 5, 1983
    ...S.E.2d 37 (1966); Amer. Car & Fdy. Co. v. Water Co., Appellant, 221 Pa. 529, 535, 70 A. 867 (1908); and Central Soya Company, Inc. v. Henderson, 99 R.I. 388, 396, 208 A.2d 110 (1965). We find no definition of the purpose of a subpoena duces tecum in a criminal context among the Maryland Rul......
  • State v. McGill
    • United States
    • West Virginia Supreme Court
    • March 12, 2013
    ...justice so require [ ].” Matter of Computer Tech. Corp., 78 N.C.App. 402, 337 S.E.2d 165, 167 (1985). See also Central Soya Co. v. Henderson, 99 R.I. 388, 208 A.2d 110, 115 (1965) (“The power to issue a subpoena duces tecum is inherent in the court, its purpose being to promote the prompt a......
  • Urbani v. Razza
    • United States
    • Rhode Island Supreme Court
    • February 15, 1968
    ...would probably have influenced the verdict or had a controlling influence on a material aspect of the case. Central Soya Co. v. Henderson, 99 R.I. 388, 208 A.2d 110; Marley v. Providence Journal Co., 86 R.I. 229, 134 A.2d 180; Warren v. Warren, 33 R.I. 71, 80 A. 593. Only infrequently does ......
  • State ex rel. Scott v. Berberian
    • United States
    • Rhode Island Supreme Court
    • December 17, 1971
    ...the witness being in court, there was no necessity for issuing a subpoena duces tecum to obtain the record. In Central Soya Co. v. Henderson, 99 R.I. 388, 208 A.2d 110 (1965), we said that motions for the issuance of a subpoena duces tecum are addressed to the discretion of the court. In th......
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