Guadalupe & San Antonio Rivers Stock Ass'n v. West

• Decision Date: 11 March 1890
• Citation: 13 S.W. 307
• Court: Texas Supreme Court
• Parties: GUADALUPE & SAN ANTONIO RIVERS STOCK ASS'N <I>v.</I> WEST.

13 S.W. 307

GUADALUPE & SAN ANTONIO RIVERS STOCK ASS'Nv.

WEST.

Supreme Court of Texas.

March 11, 1890.

Commissioners' decision. Appeal from district court, Lavaca county.

S. F. Grimes and R. A. Pleasants, for appellant. A. P. Bagby and Ellis & Patton, for appellee.

ACKER, J.

The Guadalupe & San Antonio Rivers Stock Association, a corporation brought this suit against George W. West, one of its members, to collect an assessment alleged to have been made by plaintiff by authority of its charter. The trial was without a jury, and resulted in judgment for defendant, from which this appeal is prosecuted.

On the trial, plaintiff offered to prove by the deposition of Mugge that the assessment was made by authority of an order of the board of directors made at a meeting of the board on the 26th day of August, 1884. The evidence was objected to upon the ground that it was "secondary, and not the best, evidence." The objection was sustained, and this ruling is assigned as error. Article 586 of the Revised Statutes requires corporations to keep a record of all business transactions; and article 601 makes such records, or copies thereof, authenticated by the signatures of the president and secretary, under the seal of the corporation, competent evidence in any action or proceeding to which such corporation may be a party. To fix defendant's liability, plaintiff must have shown that the assessment was made, the best evidence of which was the record of the order or resolution of the board of directors. It is a familiar rule governing the production of evidence that the best evidence of which the case, in its nature, is susceptible, must be produced, and none other can be received, if objected to, until the non-production of the best is accounted for. There was no attempt to show that the records of the corporation had been destroyed, or to explain in any other way the non-production of the primary evidence as a predicate for the introduction of the secondary evidence offered; and we think the court did not err in excluding it.

The only other assignment of error presented is: "The court erred in refusing a new trial to plaintiff as asked for in its motion and amended motion for new trial, filed herein on the 7th and 10th of August, 1889." Under numerous decisions of this court, we must hold that this assignment is too general to entitle it to consideration. Blum v. Whitworth, 66 Tex. 350, 1 S. W. Rep. 108; Cannon v. Cannon, 66 Tex. 682, 3 S. W. Rep. 36; ...