Romero v. New Iberia Milling & Development Co.

Citations

• 113 La. 110
• 36 So. 907
• 1904 La. LEXIS 625

Syllabus

<p>DISCOVERY — PRODUCTION OF BOOKS AND PAPERS — PRESUMPTIONS—ACTION ON CONTRACT — EVIDENCE. .</p> <p>1. Where the court, upon plaintiffs’ application, orders a defendant to produce on a certain day a document which they alleged he had in his possession, and which on being produced would show the existence of the contract upon which they had declared, and the defendant answers the order by declaring that such written paper was not as plaintiffs had declared, but, such as it was he could not produce it, as it had been lost or mislaid, the court was without authority to order that the document should be held to be such as the plaintiffs asserted it to be, and that it would, if produced, establish the contract declared on, in the absence of any traverse by plaintiffs of defendant’s return to the order, and any evidence taken on the subject.</p> <p>2. It was the duty of the plaintiffs, as such, to have established affirmatively by evidence the existence of a contract between themselves and the defendant, and its terms and conditions. Although the contract may have been in writing and could not be produced, it was none the less their duty to have established the contract and its terms by secondary evidence. The court’s order relieved the plaintiffs from doing what they were legally required to do, and placed defendant throughout the trial at a disadvantage.</p> <p>(Syllabus by the Court.)</p>