"1.
Because his honor erred in the admission of testimony in
that on the issue of whether the erasure of the printed
provision for attorney's fees in the two notes sued on
herein had been made by the defendant or without his
consent. His honor, over plaintiff's objection
permitted the witness Meighan (who, as bank collection
clerk, had handled other notes executed to defendant
Badham, on printed forms like the two notes in question) to
testify that the printed attorney's fee clause was not
erased in the said other notes; plaintiff objecting that
such testimony was irrelevant, and that the
fact that the clause 'was not erased in other notes
does not tend to prove that it was not erased on these
notes,' and his honor holding and stating, 'does
not prove that it was not erased on this note, but would be
some evidence on that point,' and allowing
defendant's attorney to ask the question, 'Do you
recall ever having seen one of these notes of Mr. Badham
with the clause to
which I called your attention erased?' and allowing,
over objection, the witness to answer, 'No, sir; I do
not recall ever seeing one of the Badham notes with this
erasure before.'
"It
is submitted that the testimony was irrelevant and
misleading in its effect upon the minds of the jurors, and
that the effect was further prejudicial because his honor
stated that the said testimony throws light on the
question.
"2.
Because his honor erred in allowing the defendant, Badham,
over plaintiff's objection, to testify as to his
relations with the machinery company to which he had
indorsed the notes sued on herein, such testimony being
conclusions from catalogues and correspondence which should
have been produced as the best evidence, defendant
endeavoring by such oral testimony--merely his personal
construction in his own favor-- to prove that he was agent
for the sale of said machinery, rather than independent
purchaser and dealer on his own account (as plaintiff
contends the correspondence shows), and that his
indorsement was not intended as an absolute guaranty, to
wit: 'A. In consequence of my writing, complete
estimates and prices for mills were furnished me, and I
acted with the knowledge of the Richmond City Mill
Works--Mr. Lyles: The matter of prices ought to have been
in writing; let him produce the writing. (Defendant then
testified they were lost.) Mr. Muller: That relieves the
matter from my friend's objection. Mr. Lyles: I do not
think so. It does not permit him to testify to any
relations which were based upon the papers themselves. I do
not think it is sufficient for one who has had a catalogue
of machinery of a machinery institution to
testify as to its loss and contents. He should have given
notice to produce such a catalogue, because it is always
presumed that a printed catalogue like that--that the party
who had it printed can produce it. The Court: I do not see
what the contents of a catalogue has to do with it. Do not
see the necessity of going into the contents. Mr. Muller:
He is stating the connection between himself and the
Richmond City Mill Works. The Court: Leave out everything
in reference to correspondence, and give a plain statement
of your connection, and we will get along better. Mr.
Lyles: Your honor understands us as objecting to his
testimony. He is going to testify from conclusions of
correspondence. There was no personal conference between
them. Mr. Muller: My friend is in error about that. The
Court: Go ahead. A. I began, with their consent and
knowledge, to solicit business-- Mr. Lyles: We object. If
their knowledge and consent is in writing he must produce
it. The Court: Go ahead. A. To solicit business in the city
for the Richmond City Mill Works for their flour mill
system. *** I actively canvassed this state from one end to
the other for the Richmond City Mill Works, selling their
machinery for them, soliciting trade for them, and I sold
one or two of these large outfits for them-- Mr. Lyles: Our
objection goes to all of this. *** He is now testifying to
the result of the correspondence; his idea of the result of
the correspondence. *** The Court: This testimony ought to
go in on the question of bona fide holder of the notes. Mr.
Lyles: We object on the ground that if he had written
authority from them he must produce it; he has no right to
testify what he had done by authority contained in a
written instrument or correspondence. The Court: I do not
understand this witness to say that he had written
correspondence on this. The Witness: Great many of them I
did not. *** Richmond City Mill Works were in the habit of
sending me inquiries in this state. It was
understood between us that I should be their exclusive
agent-- Mr. Lyles: We object to his understanding. The
Court: Have you a written contract with them? A. No, sir. I
am trying to explain how the business grew up. Mr. Lyles:
From the correspondence? *** The Court: Go ahead. The
Witness: Under arrangements that had grown up between us
and the understanding, I should have their exclusive agency
of this state, they sent me inquiries from all over the
state which I went to see, soliciting this trade for them.
During those three or four years of soliciting I effected
the sale of three mills *** (including this), and they
recognized me as their agent by sending me all these
inquiries and directing me to go-- Mr. Lyles: Does your
honor rule he can testify to their sending him these
inquiries when all were accompanied by letters? If a matter
is done in writing, no matter what it is, the writing is
the best evidence. (Objection overruled.) Witness: Well, as
I said before, they sent me inquiries all over this state.
I sold this machinery for them, and would make settlements
with them; had correspondence with them concerning it. They
would send me directions, blue print for putting up this
machinery, and directions of that kind.'
"It
is submitted that there was error in thus allowing defendant
to testify of the effect and understanding of transactions by
correspondence, the correspondence being the best evidence,
and plaintiff suffered thereby, in that defendant was
permitted to present to the jury, apart from the
correspondence which was the best evidence, defendant's
own deductions and plausible argumentative testimony that he
was, after all, merely an agent ('soliciting this trade
for them'), and not debtor on the notes indorsed by him.
"3.
Because his honor erred in allowing the defendant, Badham
over the objection of the plaintiff, to testify as to course
of business by correspondence, and his conclusions therefrom
of his agency in the sale of machinery for which the notes
sued on were
given and indorsed by him, and his nonliability by said
indorsement, instead of requiring an effort to produce the
writing as the best evidence, and so allowed the defendant to
testify that he was not the bona fide guarantor of the notes
sued on, but acted as the representative of the machinery
company through which the plaintiff claimed, to wit: 'Q.
When you would sell one of these large plants, describe the
method you would pursue. A. Well, I would send the order in
to the Richmond City Mill Works for the machinery, describe
what it was for, *** and they would ship it to the
customer--ship it to the original purchaser--and under my
agreement I had to put that machinery up, that is, my
mechanics had to put it up, according to the blue prints, the
plans, that the Richmond City Mill Works furnished. Mr.
Lyles: At the risk of seeming to be against the intimation of
your honor's remarks a few minutes ago, we still submit
that it is incompetent for this witness to go ahead and
testify as to these orders, or anything else, having been in
writing, until he has taken the proper steps showing that he
has given notice to produce them, then he can offer secondary
evidence of its contents. The Court: He is not testifying to
the contents of the writing. Mr. Lyles: I think he is He said
he sent orders to these people for this machinery. He is
showing that he sent in orders, and that shows a written
instrument. The Court: I have not observed anything more than
that this witness is giving a general statement of his
connection with these people. *** A. To make up a complete
plant, I would sell the engine and boiler of the engine
company I represented and the flour mill machinery from the
City Mill Works, and the pulleys and shafting from the people
I bought those things from, and the belting which I usually
obtained in Columbia. Q. When you had settlements with the
purchaser, how would you arrange them? A. That portion that
belonged to the Richmond City Mill Works I would take good
notes and turn them over to them, if notes, and
with the other manufacturers the same way. I would divide up
the whole order according to their interest in that order,
and made settlement that way. Q. Was that done in the case of
the Huffman machinery? A. Yes, sir. Mr. Lyles: All of it was
in writing, and we object to his testifying. *** The Court:
Was that done in writing? A. I sent the notes to these people
in a letter accompanying the notes when I sent them to them.
The Court: Do you expect them to produce that letter:
haven't you got it? Mr. Lyles: We have it. If he gives us
notice to produce it, we will produce it right now. The
Court: He has not got to the point of settlement yet. Go
ahead Q. (By Mr. Muller): That is the way you...
