51 Miss. 103 | Miss. | 1875
delivered the opinion of the court.
John J. Green had demised to Peter Harrison for the year 1873, a farm in the county of Lincoln, reserving a rent of eight bales of cotton, to be paid on the 1st of November. In the latter part of that month Green called upon his tenant for the rent, when Harrison delivered to him a lot of seed cotton, which, when ginned and baled, made three bales, which was all the cotton the tenant then had on the premises. Green took the cotton to Brookhaven
From this summary of the facts, which constitute the body of the case, we advance to the questions of law raised by the bill of exceptions.
After Green, the plaintiff, had testified as to the terms of the demise on the examination in chief, he was asked, on cross exam
One of the cardinal rules of evidence is, that the party must produce the best evidence which, under the circumstances, is attainable. If the contract has been reduced to writing, the paper itself is the best and most reliable proof of its terms; nor will secondary evidence be allowed unless a sufficient reason is shown for the nonproduction of the better. It was in the power of the plaintiff, Green, to have produced the written lease, for he had it when he gave an oral account of its terms, and when the defendant insisted that this original and higher evidence should be put before the jury, it was error not to have required it, and fatal error, unless something else occurred in the subsequent stages of the trial which cured it.
The second witness introduced by the plaintiff was Applewhite, who deposed to the contract of lease as Green had done, without objection by the defendants. The witness was present when the contract was made.
If parol evidence goes to the jury to establish a fact, of which written evidence exists, without objection, it will be taken that the party waives any exception for that reason. Edge v. Keith, 13 S. & M., 295. Acquiescence in the admission of secondary evidence, as a copy or oral evidence of a contract which is in writing, estops the party from objecting to it (after the testimony has been closed) as inferior in quality. It was the duty of the defendants to have arrested the witness Applewhite from speaking of the lease and its terms, because it was in writing. If that had been done the writing would have been produced, or if not, the court would have excluded the testimony. The terms of the lease were also proved by the witness Harrison, without objection. As we have already said, it was error not to have ruled out the oral testimony of Green in reference to the contract of
There was then before the jury’oral testimony of the terms and conditions of the lease.
The defendants were in possession of the lease ; it was handed to them pending the examination of Green. If it would have been of any service to them they could have put it in evidence. Certainly they ought not to have closed the mouths of Apple-white and Harrison, unless they were content to let the contract' in that mode of proof go to the jury.
We are of opinion, therefore, that the defendants waived their original objection, and acquiesced in the proof of the contract by secondary evidence. The point falls within the operation of the rule applied in Atwood v. Meredeth, 37 Miss., 635, and Cogan v. Frisby, 36 id., 178. Warren, a witness for the plaintiff, was permitted to depose as to the wealth and property of the defendants, or some-of them. This is also assigned for error. In Bell et al. v. Morrison, 27 Miss., 85, 86, it was held that when a proper case was before the jury, justifying the interposition of exemplary damages, the jury ought to be informed of all the circumstances which would enable them to make a right estimate. Among these, was the situation of the parties as to wealth, character and influence. The point arose in that case on an exception to the admission of evidence “ showing the quantity and value of the property owned by Bell” (the defendant) precisely as the question is presented in this record. See also, N. O., J. & G. N. R. R. Co. v. Hurst, 36 Miss., 660.
The circumstance that the defendants, or some of them, áre persons of wealth, is of no consequence, unless the jury would be
We have no hesitancy, therefore, in holding that the jury might well impose exemplary damages if the plaintiff had established his right to recover.
The case of Arbuckle v. Nelms, 50 Miss., 558, in its circumstances, is like the case under consideration. In that case, as in this, the contest was between the lien created by a deed of trust, and the lien of the landlord for his rent, under the statute of 1873, pamphlet, p, 79. There we held .that the statute imparted
If Harrison is to be believed, be had paid and overpaid bis indebtedness to Storm & Co.; nor did tbe defendants overcome that testimony by a production of the accounts and credits.
Tbe right of tbe plaintiff to recover was clear, not at all dependant on doubtful or conflicting evidence. If tbe result of tbe trial is clearly right on tbe law and tbe evidence, a new trial will not be awarded by tbis court, although the court may have misdirected the jury. If tbe verdict is right and justice has been done, it cannot be affirmed that the plaintiff in error has been prejudiced by the instructions. Why remand [the cause for another trial when it is manifest that the same result will be attained ? Erroneous instructions are not grounds for setting aside a verdict, where it is plainly right on tbe law and facts; Wiggins v. McGimpsey, 13 S. & M., 532; Head’s Case, 44 Miss., 731; Evan’s Case, id., 762. On tbe bearing of tbe motion for a new trial, tbe plaintiff entered a remittitur for $1,058. Thereupon, tbe court overruled tbe motion, and awarded judgment for $442, tbe residue of the verdict. We promptly respond to tbe assignment of error, assigning the verdict as excessive. That, in our opinion tbe sum for which tbe judgment was rendered is not exorbitant. In cases for test, tbe verdict will not be set aside for excessive damages, unless it appears that tbe-jury committed some error, or acted under some improper bias, or bad mistaken tbe rules of law by which tbe damages should be regulated. Briscoe v. McElween, 43 Miss., 569, and cases there cited. Tbe views which
Tbe judgment is affirmed.