Pollak v. Harmon

• Decision Date: 10 November 1891
• Citation: 94 Ala. 420,10 So. 156
• Parties: POLLAK ET AL. v. HARMON.
• Court: Alabama Supreme Court

10 So. 156

94 Ala. 420

POLLAK ET AL. v. HARMON.

Supreme Court of Alabama

November 10, 1891

Appeal from circuit court, Bullock county; J. M. CARMICHAEL, Judge. Affirmed.

Action of trespass by J. F. Harmon against Ignatius Pollak and others. Judgment for plaintiff. Defendants appeal.

Roquemore, White & McKenzie, Norman & Son, and A. A. Wiley, for appellants.

Cabaniss & Weakley and Watts & Son, for appellee.

CLOPTON J.

On the trial of an action of trespass, brought by appellee against appellants, for levying an attachment against Harmon Bros. on a stock of goods which plaintiff claimed to have purchased from the defendants in attachment, both the vendors were sworn, and, with other witnesses, placed under the rule. The consideration alleged to have been paid was plaintiff's assumption of a debt of Harmon Bros. to Lehman, Durr & Co. for which he had become personally liable as surety, and to secure which he had mortgaged his real estate. Also his obligation to hold Harmon Bros. harmless against the payment of the debt. The vendors were not examined, plaintiff choosing to rely upon his own testimony to prove the consideration and the bona fides of the transaction. Defendants requested the following charge: "The failure of the plaintiff, if such is the fact, to introduce the grantors of the bill of sale as witnesses to prove the consideration of the instrument, if they were present in court, is a circumstance of suspicion that the jury may look to in determining their verdict, if there were any suspicious circumstances surrounding the transaction of making the sale." The refusal to give this charge is the only error assigned. There is a rule of evidence that, when a party has it in his possession or power to produce the best evidence of which the case, in its nature, is susceptible, and withholds it, the fair presumption is that he withholds it from some sinister motive, and that its production would thwart his evil or fraudulent purpose. This rule "excludes that evidence which itself indicates the existence of more original sources of information." There is also another rule, that, when a party has the means of producing a witness who possesses peculiar or higher knowledge of the transaction, and fails to produce him, this affords ground for suspicion that the testimony of such better informed witness would be unfavorable to his claim. Also, when any material circumstance is left unexplained, or there is an irreconcilable conflict of testimony preponderating on either side, and the party has, or is presumed to have, the means of explaining or contradicting, the failure to introduce the explanatory or contradictory testimony raises a presumption against the party on whom is the burden of proof, and is a circumstance to be weighed against him. 2 Whart. Ev. § 1267. Neither of the foregoing rules requires the production of the greatest amount of evidence which it is in the power of the party to produce as to any given fact. In the language of an eminent jurist, the rule is not infringed "where there is no substitution of evidence, but only a selection of weaker, instead of stronger, proofs, or an omission to supply all the proofs capable of being produced." 1 Greenl. Ev § 82. Similar charges have been considered and disapproved. In Jackson v. State, 77 Ala. 18, the charge requested was: "If there were but two witnesses to the difficulty which resulted in the death of the deceased, and ...