Coons and others v. Renick, 11 Tex. 134

Lipscomb J. The appellants assign the following errors : 1st. The Court erred in admitting as evidence, the copy of the contract between Major Babbitt and the appellants. 2nd. The Court erred in its general charge to the jury. 3rd. The Court erred in refusing to give the charges asked by the appellants. 4th. The Court erred in refusing to grant a new trial. To consider the errors in the order in which they have been presented, The statement of facts shows that the plaintiff in the Court below offered in evidence, a copy of a contract entered into between Major Babbitt, U. S.

Quarter Master at San Antonio, and the appellants, for the transportation of military stores, which copy was certified to by Major Babbitt as correct. It was proven by Major Babbitt, that the contract was signed in triplicate, and that one of the originals was on file in the Qurter Master’s Department in San Antonio; that he had no doubt, the copy produced was a true and faithful copy of the original, which he had control of in his office. Whether this was competent evidence is the matter to be enquired into.

If the original could have been procured, it would have been primary evidence, and the failure to introduce it would not have let in secondary evidence. If the original was beyond the control of the party, a copy would be admissible; or any other kind of secondary evidence of its contents. (See Mote, Greenleaf Evidence,

Section 84.) If the Quarter Master General could have been compelled to produce the original, under his control in the Quarter Master’s Office at San Antonio, by a process of the Court, it ought to have ■ been so produced. If the contract had been any private paper or document, it is believed that Major Babbitt might have been compelled to bring it into Court, under a subpoena duces tecum. If it however is to be regarded as a public document, which he, as an officer of the government, is required to beep, the production of the original would be dispensed with, and secondary evidence could be resorted to.

We apprehend, that from the character of the contract, it would be considered of a public character, in which the interest of the government was concerned, and one important to be preserved in the office of the Quarter Master at San Antonio. Mr.

Starkie, in discussing the propriety of the rule rejecting secondary evidence, when primary evidence could be procured, says, “So, where “ a document is of a public nature, a copy of it is evidence; for “ the production of the original is dispensed with, on account “ of the inconvenience that would result from the frequent re- “ mo val of public documents; and consequently, the absence of “ the original affords no presumption of fraud.” (1 Starkie, 392.) If Major Babbitt could be required to appear and produce the original in one of the Courts, he would be equally liable to attend, with his original contract, all over the State, to the great hazard of a loss of the document, as well as to the great inconvenience of those interested in the contract, from its being removed from the office of the Quarter Master General.

It is impossible to foresee the extent of the inconvenience to the public service, if the rule should be laid down, that the Qurter Master could be called from his service, where his presence might be constantly necessary, to go with a document, not his own but belonging to the government.

The reason of the rule requiring the original to be produced, is founded on the apprehension that to dispense with the primary, and resort to secondary evidence, would open a door for fraud; but, when it is clear, from the circumstances, that no suspicion of fraud could arise, and a great inconvenience would be the consequence of requiring the production of the primary evidence, it should be dispensed with. In this case, it is not perceived that there would be the slightest danger of fraud or injury resulting from permitting the secondary evidence to be resorted to.

It appears that the contract, sought to be proven, is one in which, in this case, Major Babbitt could not have the remotest interest in withholding its contents ; nor had the government, he represented, any interest in the question. The contract was really with the government, through him ; and no liability could accrue against him or the government, let the result of this suit be a decision for the one party or the other.

We must presume that the proper place for the deposit of the contract, is with the Quarter Master General; this presumption arises from the nature of the contract; and if Major Babbitt should be transferred to other service, that it would properly belong to the office, and its custody would devolve upon his successor ; and in all such cases, the primary evidence ought not to be required, neither by subpoena duces tecum,, nor by an order of Court, when the contents of the original could be proven.

Having arrived at the conclusion, that the original contract could be- dispensed with, and secondary evidence resorted to, there is no doubt but the copy was sufficiently proven by Major Babbitt; not by his certificate to the copy, but by his evidence upon the trial, when placed as a witness upon the stand. The degree of credit given to it when permitted to go to the jury, in proving the copartnership of the defendants, was a question, then, for the jury alone to decide.

In answer to the second assignment, it may be answered, that, to allege that the Court erred in its general charge to the jury, is too general for an assignment of errors. The assignment should have pointed to the particular portion of the charge objected to and suppposed to be erroneous. On looking into the charge, however, we are unable to perceive any apparent error. The third assignment embraces the charges asked by the defendants, and refused by the Court.

This error is not sustainable; the charges prayed were not warranted by the statement of facts; moreover, if there was a partnership in the enterprise—and the proof as to that fact is clear—it was wholly immaterial what the arrangement, as to the several duties of each, may have been, between the parties themselves; they would be liable as partners, and it is not material which one of them employed or engaged the services of the plaintiff. The services being rendered, all the partners became liable for the payment.

If the charge, refused, had gone further, and asked -the Court to charge the jury, that if there was no partnership, then the direction asked would be the conclusion of law, as to the liability of the parties, it should have been given. The charge, as asked, could only have been given, on the assumed hypothesis, that there had been a failure to prove the partnership. This hypothesis, the Court had no right to assume. The fourth assignment can avail the appellants nothing.

In overruling the motion for a new trial, the Court did not err, as the verdict is not believed toffiave been either contrary to law or the evidence. There was proof of the partnership in the enterprise of transporting the military stores, and there was proof that the plaintiff performed services as a teamster in the transportation of those supplies, and there was, proof of the value of his services,—the jury found the value of the services rendered, and there is no ground perceived why their verdict should be disturbed. Judgment affirmed.