McLeod Lumber Co. v. Anderson Mercantile Co.

• Decision Date: 16 June 1913
• Docket Number: 15,984
• Citation: 105 Miss. 498,62 So. 274
• Court: Mississippi Supreme Court
• Parties: MCLEOD LUMBER CO. v. ANDERSON MERCANTILE CO

62 So. 274

105 Miss. 498

MCLEOD LUMBER CO. v. ANDERSON MERCANTILE CO

No. 15,984

Supreme Court of Mississippi

June 16, 1913

APPEAL from the circuit court of Forest county, HON. PAUL B JOHNSON, Judge.

Suit by Anderson Mercantile Company against the McLeod Lumber Company. From a judgment for plaintiff, defendant appeals.

Appellee was plaintiff in the court below, and appellant was the defendant. Suit was brought for an alleged balance due on open account for goods furnished the Glazier Lumber Company and charged to appellant, it being the contention of the plaintiff that appellant had requested the delivery of the goods to the Glazier Lumber Company by written orders and by telephone messages; but appellant claims to have settled for all goods so ordered, and denies liability for any balance over and above the amount already paid, and that the only goods which it agreed to pay for were ordered in writing. At the trial appellee did not produce the written orders, but was permitted to testify as to the contents of same. Appellee was also permitted to introduce a mutual account between the appellant and the Glazier Lumber Company, which appellant contends was entirely irrelevant to the issue. The theory upon which it was admitted was that appellant had charged Glazier Lumber Company with the entire account sued on, and had thus received the benefit of same in their settlement of the mutual account; one of the employees of the Glazier Company testifying that appellant was indebted to the Glazier Company, though the evidence was not clear on that point, and it was not shown what items composed the indebtedness, or how witness arrived at the balance said to be due.

The court gave the following instruction at the request of appellee: "(4) The court instructs the jury, for the plaintiff, that if from the evidence you believe that the McLeod Lumber Company did charge the Glazier Lumber Company with this entire account for which suit is being brought, and that said Glazier Lumber Company has paid the McLeod Lumber Company in full for same, then you shall find for the plaintiff." From a verdict and judgment for plaintiff for the amount sued for, the defendant appeals.

Reversed and remanded.

R. S Hall, for appellant.

I first desire to call the court's attention to the first error complained of in the assignment of errors herewith filed in which the appellant complains of the action of the court in permitting the plaintiff to prove the account filed herein by witness, Yarborough, without introducing in court the written orders claimed by appellee to have been given it by the appellant for a portion of the items charged in the account. The court will see from a casual reading of this record that the appellee claimed that the appellant is due the sum recovered in the justice court and circuit court for goods advanced the Glazier Lumber Company, an independent concern by the appellee at the instance and request of the appellant. The appellant had a right to be confronted with all the written orders given by it to the appellee for the delivery of the goods to the Glazier Lumber Company. Counsel for the appellant in the court below strenuously objected to the introduction of the account or testimony supporting it without the introduction of the written orders. I take it that it is useless to cite authorities on this point; the orders being in writing being the very basis of this action is necessarily the best evidence and the only way that appellee could introduce proof of such orders would be in the manner provided by law, which is to introduce the orders themselves, if in its possession, which possession is admitted by witness, Yarborough. Of course, if the orders had been lost or could not be found then the introduction of secondary evidence would be permissible.

But in this case I insist that appellant had a right to have the original orders introduced in the trial of this case. Mr Greenleaf has divided writings which constitute primary evidence into three classes: First. Instruments which the law requires to be in writing. Second. Those contracts which the parties themselves have put into writing. Third. All writings where the existence of such is disputed and which are material to the suit. 1 Greenleaf Ev., par. 85.

I submit that the second and third class as distinguished by Mr. Greenleaf as primary evidence includes the written orders because the written orders are simply a contract between the appellant and appellee, and which the parties themselves put into writing; and because the proof in this case shows a dispute as to the existence of some of these orders, and for that reason they become primary evidence.

The court will see on examining the record that the appellee's claim is, that the appellant gave written orders for a portion of the account charged and ordered from Hattiesburg over the telephone to Richton, Mississippi, the delivery of the other items, to the Glazier Lumber Company. And as a matter of fairness to the appellant it ought to have been confronted by its written orders so that the telephone orders could have been squarely in issue; witness Yarborough, who testified for the appellee is unable to state the exact number of orders given in writing or the exact number of orders given by parole or over the telephone. It is incumbent upon the appellee to show how this account stood, and failing to do so the appellant should never have been required to answer the proof offered during the progress of the trial, and which the appellant had the right to assume that the appellee would confront it with its written orders; the appellant demanded that the introduction of the orders in court as provided for in section 1003 of the Code 1906 in such cases, did then and there give the appellee's counsel notice to produce the same, and which notice in writing as shown by the record, was then and there waived; and over the protest of appellant's counsel the appellee was permitted to testify as to the liability of the appellant in the face of the statute made and provided. It is the plain duty of the court under section 1003 of the Code of 1906 to have required the appellee to produce the written orders in court; no harm certainly could have come to the appellee by such procedure on the part of the court. The court could have continued the case to another day in the term, or entered some order without hurt or harm to either party. I insist that the action of the court in refusing to require the appellee to produce the written orders under the section cited is reversible error; I am not contending that under the penalty of the statute that the appellant was entitled to judgment because the court had made no order requesting the appellee to produce the written orders, but, had the court requested the introduction of such, I take it that the appellee would have complied therewith. If section 1003 fails to relieve such hardships as is placed upon appellant in this case I see no service of it in the least, and I confidently expect a reversal upon the act of ...