Perry v. Archard , 1 Indian Terr. 487 ( 1897 )

Springer, C. J.

(after stating the facts.) The pellant’s first assignment of error is to the effect that court erred in granting the appellee the right to open conclude the argument to the jury on the trial of said caí because the burden of proof was placed by law upon ap; lant, as plaintiff in the case, and because appellee faile< admit that appellant was an innocent purchaser for va before maturity, of the note sued on, as appellant alleged claimed. The right to open and close the argument il case is, in cases in which the defendant alleges new ma| of defense, largely in the discretion of the trial court; unless it appeared that, such discretion had been abusecj the prejudice of the opposite party, the case should nc reversed on this account.

The second assignment of error is as follows: court erred in permitting appellee and his witness Si Evants to testify that appellee applied to the Equitable Insurance Company through O. B. Kone, its agent, f<| fifteen-year life insurance policy, — that is, for a life iij anee policy on which fifteen annual premiums would ha-¶ be paid, and which would mature in fifteen years, — the j herein sued on being executed for the first annual prer on said policy, because appellee, said Evants, and appl other witness, W. H. Usrey, all testify that appellee mJ written application for said policy to said company, vl said written application was the best evidence of the kil policy applied for by appellee. No diligence of effort! shown by appellee to obtain the production of said wJ application in court. No written notice to produce| written application in court was ever served on appella any time. No verbal notice to produce said written apj tion in court was ever given appellant until after the tr the United States Court, from the result of which trial eal is taken, had commenced. The possession of said hten application was not traced to appellant, and no ¡iicate of any kind was laid by appellee for the introduc-of secondary evidence of the contents of said written llication. ”

Written Instrument-Notice to produce.

The rule is well settled that secondary evidence of the Lents ‘of a written ^ instrument cannot be given if the linal is shown or appears to be in the possession or power Iverse party, unless the party proposing to offer such Indary evidence gives such notice to produce it as the |t regards as reasonably sufficient to enable it to be pro-id. Steph. Dig. Ev. p. 189, and authorities therein cited, object; of the notice to produce is to enable the party to | the document in court, and, if he does not, to enable his pnent to give parol evidence of its contents. All rea-jble means to procure the original must be taken before lid ary evidence can bo given. Bourne vs Buffington, Mass. 481; U. S. vs Duff, 6 Fed. 45; DeWitt vs Prescott, Mich. 298, 16 N. W. 656; McPherson vs Rathbone, 7 210; Insurance Co. vs Cadwell, 3 Wend. 296. Itap-from the record in this case that no notice was given ipellant or to the insurance company of which he was |gent to produce the written application which appellee to the company, and which would have disclosed the ¡is to whether he had applied for a 15 or a 20 year policy. deposition of O. B. Kone, who was the agent who |s out the application, it is stated that the application writing, and the policy was “to run for a period of ly years, the policy being a twenty-years tontine, on pdinary life plan.' ’ The appellee testified that the that he applied for was to run for 15 years, and that ilined to accept this policy, because it was to run for |ars. This conflict in the parol evidence shows the im-íce and necessity of the rule, which requires all rea-|le means to be taken in order to procure the original documents before secondary evidence of their contents be given. In the case at bar the question as to whether pellee applied for a 15-year or a 20-year policy was 1 material. In fact, the case seems to have turned on point. Appellee pleaded failure of consideration, anc alleged failure was that he had not received the 15-policy, for which he applied, but a 20-year policy inst The fact was found, on the parol evidence, in favor of pellee’s contention. The written application would definitely settled the question. It was error to permi pellee to prove its contents by secondary evidence, the per notice not .having been given for the production o original.

Written Instrument-Secondary evidence of contents— Error.

The third assignment of error is as follows: court erred in not giving the following charge, requestJ appellant: “That if the defendant, the purchaser of I policy, failed to return it within a reasonable timei kept it until the time was out, he would be estop J This instruction, or the substance of it, should been given to the jury. It has the merit of brd but the court might with propriety have elaborated j suggested in appellant’s brief, so as to have pres clearly to the' jury the principle ‘ ‘that appellee would topped from claiming that he had received a policy ing in twenty years instead of one maturing in fifteen if he failed to return the twenty year policy witlj reasonable time, and kept it until the year during whiij policy he contracted to obtain was kept in full force premium represented by the note sued on had exj The true test as to whether there had been a failure o| sideration was this: In the event of the death of the ini the appellee in this case, during the year for which hi insured, could the beneficiaries of the policy have rec| from the insurance company the amount for which insured? If appellee had died with this policy in hid ion would not the company have been liable? What de-e could it have set up to defeat an action on the policy? id received the premium for one year. The agent had the money to the company, and loaned the insured an ant sufficient to pay the premium. The policy was add to be in the possession of the insured for the whole for which the premium had been paid. If the insurance aany had refused to pay in the event of death, and had, suit to recover the amount of the policy, interposed a or answer to the effect' that it was true the company been paid the premium for one year, yet that the insured borrowed the money with which to pay the premium, Lad given his note therefor, payable in six months, but efused to pay the note, claiming that he had received a ty year policy instead of a fifteen year policy, such ense would have been promptly set aside on demurrer, premium on a twenty-year policy for one year was less it would have been on a fifteen-year policy for the same nt. Hence the insured could not complain that for the ear for which he had paid for insurance he had paid more the insurance for that period of time was worth. If he eally desired a fifteen-year policy, the exchange could have been made within the year. He 'was in no wise d or prejudiced by mistake as to the time the policy was ture. He had one year of life insurance, — all the time ich he had paid, — and, after receiving the benefit of the nee for one year, he was estopped from pleading a [e of consideration. It will be seen from the statement |S case that it was admitted upon the trial that appellee n his possession at'the time of the trial in the commis-ps court the insurance policy issued upon the applica-ade by appellee. Counsel for appellee accept, in rief, this statement as true. One year had elapsed, time of the trial in the commissioner’s court, since the 1 the policy. During all this time it was held by the insured, and during this time the company was liable to to the beneficiaries of the policy, in case of his death, full amount for which he was insured. There was, theref no failure of consideration. The admitted facts in the ( entitled the plaintiff below to a verdict, and the trial ci should have instructed the jury, upon its own motion, tc turn a verdict for the plaintiff for the amount due on note. Instead of doing this, the court submitted the ques to the jury as to whether there was a failure of considera! The admitted facts showed that there was no failure.

Court should have instructed a verdict. Plaintiff! not innocent purchaser.

There is much contention shown in the record a whether the appellant was an innocent purchaser of the for value, before maturity. ' This fact, in view of the e ence, was immaterial. Kone, the payee of the note, wa, he testified, working under Perry as subagent for the company. Perry was charged with knowledge of K acts, and he stood in the same position that Kone did, s< as the contract with appellee is concerned. He was i| sense an innocent purchaser of the note. Counsel fo pellant should have conceded this point. Contention f untenable position always obscures, and frequently p| dices, the merits of a case. The judgment in this case i| versed, and the cause is remanded, with instructions to der a judgment for appellant for the amount due on the according to its tenor and effect, and for costs.

Clayton and Thomas, JJ., concur, not being present, did not participate. Townseni