Street v. Kelly , 67 Ala. 478 ( 1880 )

BRICKELL, C. J.

— 1. The declaration made by the plaintiff k> the defendant, that Robbs Brothers had not carried out their contract with him, and defendant’s purchase of the property in controversy from them was not worth a cent, ought to have been excluded. If relevant, it was only as evidence that Robbs Brothers had broken their contract, and the condition had happened on which, as the plaintiff claims, the property was to be restored to him. Declarations by a party promotive of his own interests, though' made to his adversary, not parts of the res gestae, or of facts lying within the knowledge of the adversary, and which, if untrue, it is reasonable to presume he would contradict, are not admissible as evidence in favor of the defendant. It is not through the medium of such declarations that legal evidence of material facts can be constructed.

2. The contract made by Kelly & Co. with the Alabama Iron Company, -was shown to have been reduced to writing, for the absence of which no account was given. The writing was the higher and better evidence, and parol evidence of its contents was inadmissible. The contract between the plaintiff and Robbs Brothers was also in writing, and its execution attested by two witnesses. It was in court, in possession of the plaintiff’s attorney, but as its execution was not proved by either of the subscribing witnesses, and no excuse was given for failing to introduce them, the court excluded it as evidence, when offered by the plaintiff. It is scarcely necessary to say, that it was error afterwards to receive parol evidence of its contracts. — Street v. Nelson, 67 Ala.

3. The contracts made by the defendant with Nelson, and with Robbs Brothers, were each in writing, the best evidence of their contents, and there was no reason shown for the introduction of evidence inferior in degree. The evidence of the contents of these writings was not contradictory of any statement made by the defendant as a witness, and their relevancy is not very apparent. As a general rule, on cross-examination, a witness cannot be inquired of as to matters reduced to writing by himself or another, and subscribed by him until the writing is produced and shown or read to him. 1 What. Ev. 268. This rule was violated in the course of the cross-examination the Circuit Court permitted.

4. The remaining questions which are of importance depend upon the terms and construction of the contract made by Kelly & Co., or Kelly with the Robbs Brothers. That contract is in writing, and until it is produced and in evidence, the questions cannot be fairly decided. There is a manifest impropriety in passing upon them now, on evidence of the contents of the writing, we are constrained to pronounce inadmissible. If in the further course of the litigation they should arise, it may be, the evidence in reference to them will be materially different.

Reversed and remanded.