Hawes v. Paul , 41 Ga. 609 ( 1871 )

EOCHRANE, C. J.

This was a motion for a new trial, arising out of a case in equity, tried in Stewart Superior Court, in relation to the settlement of copartnership transactions. The record is volumiinous, but, in the view which we take of the errors assigned, it will not be necessary to go at length into the various matters that encumber the record. The point of difference is in *the amount alleged to be due, about which testimony was introduced, and out of which grows the main controversy.

Upon the trial of the case below, the bill and answer were read to the jury, and the accounts taken from the books were attached as exhibits to the answer. During the progress of the case the defendant offered evidence of the contents of the mill-books of Hawes and Paul, and laid the foundation for its introduction, by proving first by Hawes himself, that he delivered the original books of the partnership to General Evans, that he had not seen them since, and that they were not in his possession, nor did he know where they were; secondly, B. S. Worrill, the partner of Evans, stated that he and Evans had the books in their law-office when they made out the answer of Hawes to the bill, that the books remained in the office until Evans went into the army, that he had made diligent search for them, but could not find them. The Judge rejected the secondary evidence, holding that the loss of the books was not sufficiently accounted for. We are of opinion that, under section '3714 of the Code, the Court erred in rejecting this testimony, as the cause shown was sufficient to show that the books were not accessible to the diligence of the party.

1. It is true, that, under the rules of law, questions of diligence are addressed to the Court, and we will not, ordinarily, interfere with the judgment of the Court in matters of doubtful diligence or accessibility. But when the introduction of secondary evidence is material to the elucidation of questions before the jury, and the loss of the original is, under the rules of law, sufficiently accounted for, it becomes our duty to direct its admission, that the rights of parties may be properly and legally presented to the jury for their intelligent adjudication.

2. The doubt in this case arises upon the fact that the extracts from these books were attached as exhibits, and as such were admitted in evidence. It is also to be presumed that the Judge below charged the jury in regard to the effect of the answer as evidence, and that the party had the benefit which the law gives him in the premises. But notwithstanding *this general rule, we can well see how the party in this case might be injured, in the consideration of the jury, by the rejection of the evidence offered, and are not satisfied that the whole merits of this case have been passed upon. The evidence rejected was material evidence. The party was entitled to its admission under the rules of law in this case, and we reverse the decision of the Court below, that the matters in controversy may be more fully inquired into and the legal rights of the parties upon the consideration of the whole evidence in this case be adjudicated.

Judgment reversed.