Cartier v. Trot Lumber Co.

Citations

• 138 Ill. 533
• 14 L.R.A. 470

Syllabus

<p>1. Evidence—failure to produce books upon notice—secondary evidence—presumptions. On the trial of a case, the defendant was notified to produce his books containing certain entries, and on his refusal to produce them, his book-keeper was called and testified to such entries as related to the case. The court then instructed the jury, that if they believed, from the evidence, that defendant “had in his possession or , under his control, so that he might have produced them, books or papers which contain evidence material to this case, which he has not produced in evidence, you have a right to presume that such books and. papers, if produced in evidence, would be injurious to his case, unless you find that such presumption has been refuted by other credible evidence in this caseHeld, that the court erred in giving the instruction.</p> <p>2. The mere nqn-production of books or papers upon notice has no other legal effect than to admit the other party to prove their contents by parol, unless under special circumstances. If such secondary evidence is imperfect, vague and uncertain as to dates, sums, etc., every intendment and presumption shall be against the party who might remove all doubt by producing the higher evidence. It will not be presumed that such books or papers, if produced, would establish the fact-which his adversary alleges they will prove.</p> <p>3. An instruction authorizing the jury to presume, from the omission of a party, however innocent, to produce his books and papers, that, such books and papers containing evidence material to the case would,. if produced, be injurious to his case, is erroneous, and does not state the law of evidence applicable to the case. Such an instruction is open to the objection that it leaves the jury free to determine for themselves what would be material evidence. «</p> <p>4. Same—books admissible only by consent—failure to produce—presumptions. Where a party’s books, and the entries therein, can not be admitted in evide