Godbold v. Blair & Co. , 27 Ala. 592 ( 1855 )

CHILTON, C. J.

Section 3403 of the Code invests the court with ample power to permit an amendment of the complaint by striking out or adding new parties plaintiff or defendant. There was, therefore, no error in allowing the plaintiff to amend the complaint by inserting the name of Sedberry as composing, with Blair, the firm of H. D.Blair & Co.

The witness proved the sale and delivery of the goods, the price of which was sued for, by the plaintiff to the defendant. He 'could not, however, remember the dates. Upon cross-examination he stated, that he never had compared the account with the books. He also testified, that some of the goods were furnished on written orders from the defendant, but he had never seen the defendant write. Neither the books of account, nor the orders, were produced. The defendant asked the court to charge the jury, “ that they must be satisfied from the evidence that the goods charged in the account were sold and delivered to the defendant, or the plaintiff could not, recover.” This charge the court gave. He then asked the further charge, “that what the witness said in reference to the books and orders was not evidence to prove the account sued upon — that the books and orders were the best evidence, and should have been produced.”

It may be conceded, that the evidence of the books and orders, upon a proper application, should have been ruled out, although elicited by the defendant and allowed to go to the jury without objection ; and yet the court below did not err in refusing this charge. It asked more than the exclusion of the evidence of the books and orders, in that (at least indirectly) it sought to raise a presumption adverse to the plaintiffs by reason of their not producing the books, <fcc. The latter part of the charge asked was erroneous, as it assumed that the books were the best evidence; whereas they were not admissible as evidence at all, except by the consent of the defendant. But, if wo concede they were evidence, they constituted no higher evidence of the sale and delivery of the goods, than the positive proof of the witness, who testifies to their sale and delivery. Aside, however, from this, the charge was improper in another aspect. If it had been given, the jury might well have inferred, as the best evidence had been suppressed, that they should disregard the evidence of the sale and delivery and find for the defendant. And the court, in order to prevent such charge from misleading them, must have gone farther, and have told them, that although the books and orders were higher and better evidence of their contents than parol proof of what they contained, still, if the jury believed the goods had actually been sold and delivered, and remained unpaid for, the plaintiff was entitled to recover, although they were not produced. The rule is, that where a charge as asked requires to be qualified, or explained, to prevent it from misleading the jury, it may properly be refused. — Swallow v. The State, 22 Ala. R. 20; Ross v. Ross, 21 ib. 322.

No objection has been pointed out to the affirmative charge, that if the jury were reasonably satisfied that the goods were sold and delivered to the defendant by the plaintiff, they should find for the plaintiff. We see no error in this charge. Positive certainty is ordinarily not attainable in such cases. It is sufficient if the jury, as reasonable men, are satisfied as to the existence of the facts which constitute the indebtedness. — Hopper v. Ashley, 15 Ala. R. 457.

Judgment affirmed.