Saunders v. Tuscumbia Roofing & Plumbing Co.

• Decision Date: 06 July 1906
• Citation: 148 Ala. 519,41 So. 982
• Parties: SAUNDERS v. TUSCUMBIA ROOFING & PLUMBING CO.
• Court: Alabama Supreme Court

41 So. 982

148 Ala. 519

SAUNDERS v. TUSCUMBIA ROOFING & PLUMBING CO.

Supreme Court of Alabama

July 6, 1906

Appeal from Circuit Court, Colbert County; E. B. Almon, Judge.

"To be officially reported."

Action by the Tuscumbia Roofing & Plumbing Company against Olivia Saunders. From a judgment for plaintiff, defendant appeals. Affirmed.

This was an action to enforce a lien for work and labor done and material furnished in repairing certain machinery and building alleged to belong to defendant and her husband, T C. Saunders. The defense relied on is set up in special plea as follows: "That she never made any contract with plaintiff for the material or work and labor mentioned in said cause of action, nor authorized her husband to do so and had no knowledge or notice that the material had been furnished and the work and labor done until long after its performance, and it was all done by her husband without her knowledge and consent, and that the plaintiff gave credit to her husband alone for said material and said work and labor." The defendant requested the following written charges: "(1) That if T. C. Saunders, the husband of the defendant made the contract with Bernhardt in his own name and not as agent for his wife, and that credit was given sold it to the husband, T. C. Saunders, the jury must find for the defendant. (2) That in order for plaintiff to recover in this case he must show that there was a contract either with the defendant or with T. C. Saunders as her authorized agent, and if the contract was not made with defendant or with T. C Saunders as her agent, but with T. C. Saunders individually, then the jury must find for the defendant. (3) That unless the evidence in this case shows that the contract was made with Olivia Saunders the jury must find for the defendant. (4) The proof in this case shows that Mrs. Saunders never authorized Mr. Saunders to have the work done that is sued for in this case. (5) Affirmative charge. (6) If the plaintiff in this case gave the credit to T. C. Saunders for the work he did, you should find for the defendant. (7) There is no proof that Mrs. Saunders ever ratified any contract for the work in this case."

W. P. and W. L. Chitwood, for appellant.

James H. Branch, for appellee.

SIMPSON J.

This was a suit by the appellee (plaintiff) to enforce a mechanic's and materialman's lien on certain property.

The first assignment of error is that the court erred in admitting the record of the mechanic's lien, because no sufficient predicate was laid for the introduction of secondary evidence. The testimony on this point was by the plaintiff, who testified that he could not find the original, and that he had hunted for the same at his shop and been unable to find it; that he had not examined at his residence, but the last time he had seen it it was at his shop. Mr. Wigmore, in his work on Evidence, in referring to this question about the sufficiency of the search, says: "The discovery of the Island of Atlantis has occasioned no less arduous and no less vain efforts than the attempt to frame a fixed and just rule for the conduct of this inquiry." And the learned author proceeds to state that there is no fixed rule, and that the inquiry must depend entirely upon the circumstances of the case. He goes on to express the opinion, based upon that of Lord Denman, that this is a matter which "should be left entirely to the trial court's discretion, and that it is an ill judged expenditure of effort, and a waste of time for a Supreme Court to renew the action of the lower court on this subject." 2 Wigmore on Evidence, §§ 1194, 1195, pp. 1407, 1412. Our own court has, nevertheless, expended some effort in passing upon this question.

From a general review of our cases, we may gather that it is not sufficient for the witness to state that he has not seen the paper and is satisfied that it is lost; also that it is not necessary to prove that search has been made in every possible place, but it is necessary to prove that search has been made in the place where the instrument was last seen, or kept, or in the place where it is likely it would be found if in existence. Green v. State, 41 Ala. 419, 422; Preslar v. Stallworth, 37 Ala. 402, 406; Jernigan v. State, 81 Ala. 58, 60, 1 So. 72; Bogan v. McCutchen, 48 Ala. 493; Foster v. State, 88 Ala. 182, 187, 7 So. 185; O'Neal v. McKinna, 116 Ala. 606, 616, 22 So. 905; Burks v. Bragg, 89 Ala. 204, 206, 7 So. 156; Laster v. Blackwell, 128 Ala. 143, 147, 30 So. 663; Stuart v. Mitchum, 135 Ala. 546, 550, 33 So. 670. It is recognized in several of the cases cited that much depends upon the particular circumstances of each case. The Foster Case, supra. In the Jernigan Case, supra, Stone, C.J., says that "a material inquiry is whether or not there was a probable motive for withholding this highest and best evidence. Whenever the court is able to answer this inquiry in the negative, less evidence will...