Southern Cotton Oil Co. v. the Schafer Co. , 140 S.C. 445 ( 1927 )

August 2, 1927. The opinion of the Court was delivered by Plaintiff sued the defendants in the Court of Common Pleas for Dillon County on two promissory notes, which were given in settlement of a past-due account for fertilizers.

Admitting the execution of the notes sued on, the defendants in their answer set up a counterclaim, growing out of the following matters, briefly stated: That in March, 1922, they were indebted to the plaintiff by the notes sued on; that they desired to purchase fertilizers for 1922; that then an agreement was made by plaintiff and defendants that the latter would assign to plaintiff certain notes of D.E. Britt to the defendants, the principal amounts of which aggregated $1,500.00, and which were secured by a real estate mortgage; that plaintiff agreed it would immediately credit the notes it held against the defendants with the sum of $1,000.00, and for the remaining $500.00 would furnish defendants with fertilizers of a certain grade and quantity; that the plaintiff collected the full amount of the Britt mortgage debt, but refused to properly credit the $1,000.00 on the notes of the defendants and refused to furnish them with fertilizers, as it agreed to do, to the defendants' damage in the sum of $2,500.00.

Plaintiff, by reply, denied the counterclaim.

The trial was before his Honor, Judge C.C. Featherstone, and resulted in a verdict in favor of the plaintiff "for the sum of approximately $1,700.00," as stated in the transcript.

In their appeal from the judgment below, the defendants make two exceptions, both of which relate to the same matter. That was the admission in evidence on the part of the plaintiff, in reply, of the original summons and complaint in another action, entitled "A. Schafer and S.I. Schafer, Plaintiffs, v. D.E. Britt, Defendants," which was an action also instituted by Messrs. Gibson Muller, the attorneys for the plaintiff in this action, for the foreclosure of the mortgage given by Britt to the Schafers. The defendants objected to the introduction of the papers for the reason, as stated by their counsel at the time, as follows:

"On the ground that when Mr. Schafer was on the stand, and before Mr. Schafer testified as to the contents of this proceeding, Mr. Lane demanded this summons and complaint under a notice to produce properly served in this case, and that the attorneys for plaintiff refused to produce said summons and complaint, and stated to him that there was no such summons and complaint in existence. That notice to produce served on plaintiff's counsel put the plaintiff on notice of the written instrument demanded and was sufficient notice to produce the paper now offered."

Attorney for defendants further stated:

"Under the rules of evidence, the original paper demanded by the notice to produce cannot now be introduced into evidence."

Counsel for plaintiff contended that no notice to produce the papers offered in evidence had been given; that the notice as given did not ask for the particular papers in question; and that they were admissible for the purpose of contradicting the testimony of the witness, S.I. Schafer.

The notice given by the defendants to the attorneys for the plaintiff was in the following language:

"You will hereby take notice that you are required to produce on the trial of this case summons and complaint in the case of Southern Cotton Oil Company, Plaintiff, v. D.E. Britt, Defendant, which was foreclosure of mortgage of D.E. Britt originally made to the Schafer Company.

"Take notice, further, that on your failure to produce the above-mentioned summons and complaint, then the defendants will offer in evidence secondary proof of the same."

The position of the appellants, substantially, in the argument here is this: That the main difference between the parties was whether the Britt papers were sold outright by the defendants to the plaintiff on the consideration that the defendants would be given immediate credit for $1,000 on their indebtedness to the plaintiff and receive $500 worth of fertilizers, or, if the Britt papers were merely assigned to the plaintiff as collateral security, with the agreement that when collection was made defendants were then to receive credit of $1,000 and fertilizers to the amount of $500; that the notice was sufficient to describe the papers the defendants wished to be produced; that they were of the impression that these papers would aid to establish one of the theories of their defense; that the papers should have been produced; that the defendants introduced secondary evidence to show that the summons and complaint were in an action on the part of Southern Cotton Oil Company, as plaintiff, against Britt, as defendant, for the foreclosure of his mortgage, which was at least a circumstance to show that the plaintiff here had at one time claimed ownership of the Britt note and mortgage; and that failure of plaintiff to produce the papers, under the notice given to its attorneys, under the circumstances, ought to have precluded the introduction thereafter by the plaintiff.

As a matter of fact, the witness (S.I. Schafer) had not testified positively or directly that he had seen a summons and complaint in a suit of Southern Cotton Oil Company against Britt, or that the papers he had seen were for foreclosure of the Britt mortgage. Since, however, both parties seem to concede that Schafer had so testified, and the purpose of the plaintiff in offering the summons and complaint in reply was to contradict the testimony of Schafer, we think it only fair for us to consider the legal questions involved as if the secondary evidence was as the parties conceive it to have been.

Appellants cite one decision of this Court, that in Powellv. Pearlstine, 43 S.C. 403; 21 S.E., 328, to sustain their position. The syllabus of the holding there referred to is this:

"After a party, called upon by proper notice to produce a paper in his possession, has refused to produce it, and the opposite party has introduced secondary proof of its contents, the party so refusing cannot be permitted to introduce secondary evidence as to its contents, nor to introduce the paper itself."

We have not been referred to any later decision which affirms, modifies, or overrules the holding in the cited case. We think, though, the rule announced there is a wise and salutary one. But it, and all other rules of evidence, should be construed with the object of getting at the truth of a case. When a constitutional or some substantial right of a party is directly affected, rules of evidence, made to safeguard that right, should be followed strictly. At some other times, however, and where technical rules tend to prevent a Court from the ascertainment of the truth of an issue before it, the rules of the class mentioned should be disregarded, and, certainly, construed in the interest of securing justice. The tendency now in the administration of justice is in that direction, we are glad to say. As proof that it is, the Appellate Courts of America are more and more leaving admission and rejection of evidence to the wise discretion of the trial Judges, who, on the immediate scenes of the contests, are in position to better judge as to the evidence which should be received and that which ought to be refused; and, who, if they are afterwards convinced that injustice may have resulted to any party by a ruling made, have the power, and generally the desire, to make correction of the error.

In Powell v. Pearlstine, the rule as to precluding the admission of papers, after notice to produce had been given, was applied for the purpose of preventing what appeared to the Court to be an attempt to recover on a mortgage tainted with fraud, and probably with forgery. There is no such issue, or anything in any way akin thereto, in the case at bar. The appellants' attorney frankly and very properly announced that he makes no charge of that nature, or one of any intent to keep back the truth. He stands boldly upon a decision of this Court, as he conceives it to have been written, and urges that it should be applied in this cause.

In connection with the Powell case, the appellants refer us to general principles declared in Corpus Juris, as follows:

"A notice to produce documents should describe the desired papers with sufficient accuracy to enable the party notified to understand what writings are required, and a notice to produce certain documents described therein is not sufficient to warrant the introduction of secondary evidence of other documents than those mentioned in the notice. It is not, however, necessary that the notice should describe the documents with perfect accuracy, but it is sufficient if so framed with regard to the subject-matter to which the documents relate, or otherwise, that the party notified cannot doubt what papers are meant." 22 C.J., 1063.

It is ably argued that the notice given conformed to the requirements announced, but we cannot agree thereto. The situation as to the evidence presented and the notice to produce was this: The summons and complaint produced for admission by the plaintiff were in an action of the Schafers against Britt. Plaintiff was notified to produce the summons and complaint in an action of Southern Cotton Oil Company against Britt, papers which had never existed according to the record before us. It was just as if the notice had required the production of a deed from Jones to Smith when no such deed had ever been made; and thereafter the party noticed offered to produce a deed from Brown to Smith.

Conceding, however, for the moment in some degree the position of the appellants, that there was a question as to the sufficiency of the notice given to the attorneys for the plaintiff, we are still met with another principle, already slightly adverted to, and it is approved in the same authority, last pointed to by the appellants. That principle is this:

"The sufficiency of a notice to produce a written instrument is a premliminary question of fact for the trial Court, whose determination will generally not be disturbed on appeal, except in a plain instance of injury through an improper exercise of discretion." 22 C.J., 1064.

A most careful examination of the record in this cause fails to disclose that the appellants suffered any "injury through an improper exercise of discretion" on the part of the trial Judge, even if it be admitted that there was such "improper exercise of that discretion," which we are not prepared to concede.

It is the judgment of this Court that the exceptions be overruled, and that the judgment of the lower Court be, and the same is hereby, affirmed.

MR. CHIEF JUSTICE WATTS and MESSRS. JUSTICES COTHRAN and STABLER and MR. ACTING ASSOCIATE JUSTICE R.O. PURDY concur.