Gillespy v. Little ( 1917 )

On the trial, the defendant was permitted to introduce secondary evidence of a written statement claimed to have been sent from plaintiff's agent to the plaintiff, without notice having been given to the plaintiff to produce the statement at the trial.

Where a writing of which a party desires to introduce secondary evidence or its contents is in the control of the adverse party, the former will be required as a general rule to show to the satisfaction of the presiding judge that the adverse party being in possession of the writing has failed or refused to produce the same, after notice given to him or his attorney sufficiently reasonable in point of time to allow its production at the trial, before secondary evidence of the contents will be admitted. 5 Vol. Modern Law of Evidence, § 3585; First Brickell Digest, vol. 1, p. 848; Kidd Co. v. Cromwell-Haight Co., 17 Ala. 648. The proper predicate not having been laid, the court erred in permitting secondary proof of this statement.

The second assignment of error is not well taken. The evidence was admissible as tending to show notice to the plaintiff of the character of the premises, and the purposes for which the premises were being rented.

The court did not err in refusing the two charges requested by the plaintiff and made the basis of assignments 3 and 4. One of these is the general charge, and the evidence is in conflict. The other requires a verdict for the plaintiff, unless the renting was for the purpose of subletting for immoral purposes, non constat the defendant may have used the premises himself for such purposes.

For the error pointed out, the judgment of the lower court is reversed, and the cause is remanded.

Reversed and remanded.