Miller v. Cullifer
| Decision Date | 09 February 1931 |
| Docket Number | 29204 |
| Citation | 159 Miss. 712,132 So. 327 |
| Court | Mississippi Supreme Court |
| Parties | MILLER et al. v. CULLIFER |
Suggestion Of Error Overruled March 9, 1931.
APPEAL from circuit court of Forrest county, HON. W. J. PACK, Judge.
Action by W. F. Cullifer against Zack T. Miller and 101 Ranch Shows. Judgment for plaintiff, and defendants appeal. Reversed and remanded.
Reversed and remanded.
D. W. Holmes and Anderson & Buchanan, all of Hattiesburg, for appellants.
It is not permissible to prove the terms of a contract by parol evidence, if the contract has been reduced to writing.
10 R C. L., page 905, sec. 56.
Secondary evidence of the contents of a written private contract is not admissible until sufficient excuse is shown for a failure to produce the contract itself.
Phoenix Assur. Co. v. McArthur, 64 A. S. R. 154; State v. Reed, 42 Am. St. Rep. 789.
Currie & Currie, of Hattiesburg, for appellee.
Where the primary evidence of a fact which a party desires to prove is in the possession or control of his adversary who after being notified to produce it fails or refuses to do so, secondary evidence becomes admissible.
22 C. J., page 1038, par. 1332; Pons v. State, 49 Miss. 1.
Furthermore the principle which requires production of a writing to prove its contents and excludes parol proof thereof, has been held to have no application when the inquiry into its contents came up collaterally at the trial, and the contents are not directly involved in the controversy.
10 R. C. L., page 903, par. 55.
Evidence relating to a matter which does not form the foundation of the cause of action or defense but is collateral to the issue does not properly fall within the best evidence rule, and although secondary in its character, cannot be excluded on the grounds that primary evidence is obtainable.
22 C. J., pages 978, 993, 995, pars. 1224, 1249, 1252.
Argued orally by Harry Buchanan, for appellants.
Appellee brought this action against appellants in the circuit court of Forrest county to recover damages alleged to have been caused by a willful and malicious trespass on land which appellee claimed possession of by virtue of a lease from H. S. Stevens. There was a trial resulting in a verdict and judgment for appellee in the sum of eleven dollars actual damages and seven hundred fifty dollars punitive damages. From that judgment appellants prosecute this appeal.
Appellants were engaged in operating a show, commonly called a circus. They leased from H. S. Stevens twenty acres of land on which to locate and operate the circus. The lease contract was in writing. Thereafter H. S. Stevens leased to appellee the parking rights on the twenty acres of land during the operation of the show; appellee's lease contract was also in writing.
Appellee alleges in his declaration, and his evidence tended to sustain the allegations of the...
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