Pilcher v. Dothan Mule Co.

60 So. 547 | Ala. Ct. App. | 1912

WALKER, P. J.

Tbe objection to tbe introduction of secondary evidence of tbe contents of tbe mortgage under which tbe plaintiff claimed tbe right to tbe property alleged to have been converted was properly overruled. Tbe custodian of tbe paper, who was an officer of tbe plaintiff company, testified to tbe paper having been in tbe courthouse and shown to tbe lawyers in tbe case; that be thought it was with tbe other papers in tbe case; but that, after be found that it was not in tbe courthouse, be looked through all bis papers, and in all places where be usually kept such papers, and could not find it. This evidence, especially in view of the circumstances mentioned, and tbe absence of anything to suggest tbe existence of an improper motive for withholding tbe original, cannot be said to have been insufficient to warrant a finding by tbe court that tbe original paper was lost and could not be produced, though a diligent search bad been made for it. — Saunders v. Tuscumbia Roofing & Plumbing Co., 148 Ala. 519, 41 South. 982; Jones on Evidence, §§ 212, 213. So far as the objection to the secondary evidence was based on the ground that the execution of the instrument had not been proved, it was without foundation in fact. The execution of the paper had been testified to without objection.

The appellant cannot complain of the action of the court in overruling his motion to exclude part of the answer of the witness Williams to the question asked him by the counsel for the appellee, “What did Pilcher say in reply to your demand for the mule?” as the question was not objected to, and the part of the answer sought to be excluded was clearly responsive to it.— Southwestern Ala. Ry. Co. v. Maddox & Son, 146 Ala. 39, 41 South. 9; Sloss-Sheffield Steel & Iron Co. v. O’Neal, 169 Ala. 83, 2 South. 953.

A witness for the plaintiff, having testified without objection that he had had no trouble with the defendant about an account, was asked on cross-examination if he had refused to pay an account that he owed the defendant. The court cannot be charged with error for sustaining the plaintiff’s objection to this question. It cannot be said that the mere fact of one’s refusal to pay an account goes to his credibility as a witness, or has any tendency to show the existence of bias or ill will on his part towards his creditor. The inquiry was as to a collateral matter, foreign to any issue in the case. — McAlpine v. State, 117 Ala. 93, 23 South. 130; Jones on Evidence, §§ 832, 833.

As to the suggestion that the general affirmative charge, requested by the defendant, should have been given, because of a variance between the complaint and the copy of the chattel mortgage admitted in evidence in the matter of the description of the property alleged to have been converted, it is enough to say that there was evidence tending to show that the description of the property in the original mortgage corresponded with that given in the complaint. In other words, as to this matter there was evidence not at variance with the allegation of the complaint.

Affirmed.