{ "id": 5445881, "name": "Antoine E. Cartier v. The Trot Lumber Company", "name_abbreviation": "Cartier v. Trot Lumber Co.", "decision_date": "1891-10-31", "docket_number": "", "first_page": "533", "last_page": "540", "citations": [ { "type": "official", "cite": "138 Ill. 533" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "18 Ill. 449", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 438582 ], "opinion_index": -1, "case_paths": [ "/ill/18/0449-01" ] }, { "cite": "57 Ill. 41", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5240116 ], "opinion_index": -1, "case_paths": [ "/ill/57/0041-01" ] }, { "cite": "90 Ill. 620", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "50 Ill. 169", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2607392 ], "opinion_index": -1, "case_paths": [ "/ill/50/0169-01" ] }, { "cite": "141 Mass. 119", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 766259 ], "opinion_index": -1, "case_paths": [ "/mass/141/0119-01" ] }, { "cite": "48 Ill. 494", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5230556 ], "opinion_index": -1, "case_paths": [ "/ill/48/0494-01" ] }, { "cite": "96 Ill. 584", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2716048 ], "weight": 2, "pin_cites": [ { "page": "620" } ], "opinion_index": 0, "case_paths": [ "/ill/96/0584-01" ] }, { "cite": "15 Conn. 377", "category": "reporters:state", "reporter": "Conn.", "case_ids": [ 6754453 ], "opinion_index": 0, "case_paths": [ "/conn/15/0377-01" ] }, { "cite": "3 Gilm. 120", "category": "reporters:state", "reporter": "Gilm.", "opinion_index": 0 }, { "cite": "7 Wend. 31", "category": "reporters:state", "reporter": "Wend.", "case_ids": [ 2009649 ], "opinion_index": 0, "case_paths": [ "/wend/7/0031-01" ] } ], "analysis": { "cardinality": 736, "char_count": 15862, "ocr_confidence": 0.48, "pagerank": { "raw": 2.0864331023202563e-07, "percentile": 0.7597605111340469 }, "sha256": "5797ca62cce3c180925e230bcad7a943198baba02e1b5049dea8e50070abe90c", "simhash": "1:bec7aba7fa7f269e", "word_count": 2726 }, "last_updated": "2023-07-14T17:06:24.779386+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Antoine E. Cartier v. The Trot Lumber Company." ], "opinions": [ { "text": "Mr. Justice Wilkin\ndelivered the opinion of the Court :\nAmong the instructions given to the jury by the trial court was the following:\n\u201cIf you believe, from the evidence, that the defendant, Cartier, has in his possession or under his control, so that he might have produced them, books or papers which contain evidenc\u00e9 material to this ease, 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 the other credible evidence in the case.\u201d\nIt is now insisted by appellant that the giving of this instruction was manifest error calculated to mislead the jury\" and prejudice his case. It was condemned by the Appellate Court, a majority of its members, however, holding, that the giving of it was not, under the facts of the case, reversible error. We fully concur in the view that the instruction does not correctly state the law of evidence as applicable to the facts in proof. It clearly authorized the jury to indulge a presumption not legally arising from the facts on which it is based. It will be observed that according to its terms, however innocent may have been the omission on the part of defendant to produce each and every book and paper in his possession or under his control, containing evidence material to the case on either side, the damaging presumption might be indulged. It left the jury free to determine for itself what would be material evidence in the case. That which it might presume was not merely facts which the absent evidence would tend to prove, but that all such books and papers, if produced,, would be injurious to the defendant\u2019s case, generally.\nIt is said, however, the instruction must be construed in the light of the evidence on which it is based. That is doubtdess true, if it can be definitely determined what that evidence is. On the trial the plaintiff called upon defendant to produce one of his books, which it was claimed showed certain estimates of the timber on the lands sold, and particularly the entry, \u201cTo bills payable N., $2000.\u201d One Bearman, a witness for plaintiff, and former book-keeper for defendant, testified that he made the entries, and he swore to the estimates as shown by the book; also, that the entry to bills payable, etc., meant $2000 paid to the estimator Neilan by the defendant. The defendant admitted that the entry appeared on the book, \u25a0and said that he could give no explanation of it. Construing the instruction under consideration as being based on the failure to produce this book, (and it must have been so based at least in part,) the jury were told, that notwithstanding the secondary proof of the entries sought to be introduced by plaintiff, still they might presume the book, if it had been produced, would have been injurious to defendant\u2019s case. Such is clearly not the law. Greenleaf says, in his work on Evidence, (vol. 1, sec. 37): \u201cNeither has the mere non-production of books, upon notice, any other legal effect than to admit the other party to prove their contents by parol, unless under special circumstances.\u201d Sutherland, J., said in Life and Fire Ins. Co. v. Meclianics\u2019 Fire Ins. Co. 7 Wend. 31: \u201cI do not understand ihe rule to be, that a party has a right to infer, from the refusal of his adversary to produce books or papers which may have been called for, that if produced they would establish the fact which he alleges they would prove. The rule is this: the party in such a case may give secondary or parol proof of the contents of such books or papers, if they are shown or admitted to be in the possession of the opposite party; and if such secondary evidence is imperfect, vague and uncertain as to dates, sums, boundaries, etc., every intendment and presumption shall be against the party who might remove all doubt by producing the higher evidence.\u201d The rule thus stated is quoted with approval by this court in Rector v. Rector, 3 Gilm. 120. Here appellee got the full benefit of all that it-claimed the book would prove, nothing being left vague on uncertain, and still had the benefit of an instruction from the \u25a0court that the jury might presume further injury to the defendant\u2019s case because the book itself was not produced.\nIt is said, however, that other books, maps, contracts, etc., were withheld. Some of these were pointed out in the argument, but it is not shown that they were called for by the plaintiff, nor that they would have been competent evidence \u2022on behalf of defendant if they had been offered. We are unable to see how they could have been introduced on his hehalf as primary proof without the consent of plaintiff. No presumption against him could therefore arise from his failure to produce them. Whatever inferences may be drawn against the party by reason of his failure to produce evidence in his possession or under his control are allowed on the theory that he willfully withholds such evidence. His conduct, says Green-leaf, is attributed to his supposed knowledge that the truth would have operated against him. (Sec. 37, supra.) He is treated in law as a \u201cspoliator of evidence.\u201d (Lawson on Presumptive Evidence, 120, et seq.) He must therefore suffer, under the maxim \u201comniapresumuntur contra spoliatorem.\u201d\nIt will not be seriously contended that a party is to be treated as a \u201cspoliator of evidence,\u201d merely because he does not produce books and papers which he could only offer in evidence by consent of his adversary, or because some fact might be developed on the trial which would render them competent. It was said in Merwin v. Ward, 15 Conn. 377: \u201cWhere a party has in his possession a 'deed or other \u00ednstrument necessary to support his title, and he refuses to produce it, and attempts to make out his title by other evidence, such refusal raises a strong presumption that the legitimate evidence would operate against him. But this rule does not apply to such documents as a party has no right to give in evidence without the consent of his adversary.\u201d\nThe instruction is also subject to the criticism that it clearly indicates to the jury the views of the court as to the presumption arising from the facts stated, and in that regard violates the rule announced in Elston and Wheeling Gravel Road Co. v. The People ex rel. 96 Ill. 584. See, also, Graves v. Colwell,. 90 id. 620.\nWe can not agree with the Appellate Court in its conclusion,, that notwithstanding the error of this instruction the judgment of the circuit court should be affirmed. Justice Gary, speaking for a majority of that court, says: \u201cIt is undoubtedly true, as appellant\u2019s counsel allege, that much of the testimony on the part of appellee came from very suspicious sources but the credibility of witnesses is for the jury.\u201d Justice Moran,. dissenting, says : \u201cThe evidence is conflicting, and upon the-points essential to appellees\u2019 case it does not seem to me to at all preponderate in their favor.\u201d These remarks, coming from the court, whose special province it was to review the evidence and determine the facts in the case, are significant. The case is certainly one falling within the rule, that where the evidence is conflicting and irreconcilable the instructions to the jury must be accurate. Here, on the evidence actually before the jury a verdict might well have been rendered either way. The jury are told, however, that from the mere absence of evidence they may presume against the defendant, to the injury of his case. To what extent that injury may have been carried in the minds of the jury no one can tell. It furnished a broad ground on which to condemn the entire defense. No one can say with confidence that it may not have seriously prejudiced the defendant\u2019s rights. The giving of it was manifest and prejudicial error, for which the judgment, of the circuit and Appellate Courts are reversed, and the cause remanded to the circuit court for another trial.\nIn this view of the record it will be unnecessary to notice other errors assigned. They do not go to the merits of the action, and will not probably again arise.\nJudgment reversed.", "type": "majority", "author": "Mr. Justice Wilkin" } ], "attorneys": [ "Mr. D. V. Samuels, and Messrs. Ramsdell & Benedict, for the appellant:", "Messrs. Tenney, Hawley & Cofeeen, for the appellee:" ], "corrections": "", "head_matter": "Antoine E. Cartier v. The Trot Lumber Company.\nFiled at Ottawa October 31, 1891.\n1. Evidence\u2014failure to produce books upon notice\u2014secondary evidence\u2014presumptions. 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 \u201chad 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.\n2. 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.\n3. 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. \u00ab\n4. Same\u2014books admissible only by consent\u2014failure to produce\u2014presumptions. Where a party\u2019s books, and the entries therein, can not be admitted in evidence on his own behalf as primary proof without the consent of the adverse party, no presumption can arise against him from his failure to produce them. Whatever inferences maybe drawn against a party by reason of his failure to produce evidence in his control, are allowable only on the theory that he willfully withholds such evidence.\n5. Instruction\u2014indicating views of court on facts. An instruction which clearly indicates to the jury the views of the court as to the presumption arising from the facts therein stated, is improper.\n6. Same\u2014of the accuracy required. Where the evidence is conflicting and irreconcilable, so that a verdict may well be rendered either way, accuracy in the instructions becomes necessary, and an error in an instruction in such case will call for a reversal.\nAppeal from the Appellate Court for the First District;\u2014 \u25a0 heard in that court on appeal from the Circuit Court of Cook county; the Hon. A. N. Waterman, Judge, presiding.\nAppellee, being the owner of a number of tracts of pine timber lands in Michigan, together with certain buildings, a saw-mill, etc., pertaining to the business of lumber manufacturing, on the 8th of September, 1883, entered into a contract with appellant for the sale of the same. The contract price was $190,000, provided the timber on said lands should amount to 50,000,000 feet or more, the quantity to be determined by an agreed estimate, each party selecting an estimator, and they a third, if the two could not agree. If the estimate fell below 50,000,000 feet, for each 1000 feet less than that amount a reduction was to be made from the $190,000 of $2.25 per thousand. In pursuance of this agreement, appellee selected Michael Neilan, and appellant John Stronaeh, as estimators. The former reported as the result of his estimate, 27,050,000 feet, and the latter, 25,770,000 feet, but they finally agreed upon 26,665,441 feet as the aggregate amount of timber on said lands. After further negotiations it was agreed between the parties, that in addition to the $2.25 per thousand below 50,000,000 feet, a deduction of $5000 should be allowed from the contract price as originally agreed upon, and with this modification the agreement was carried into effect.\nThis action was begun on the 1st day of June, 1888, in the circuit court of Cook county. The declaration is in ease, and after setting up the foregoing agreement and facts, avers that the defendant, for the purpose of defrauding the plaintiff, bribed said estimators, thereby inducing them to bring in a false estimate of the amount of said timber, and that said' estimators, being so bribed, did knowingly bring in a false report of the amount of timber on said lands, making it appear that they actually contained but 26,664,441 feet, whereas they in fact contained more than 50,000,000 feet; that having procured said false report, the defendant stated and insisted to plaintiff that because of said estimate having fallen so far below 50,000,000 feet, a further deduction of $5000 must be made from the purchase price, without which he would not take the property; that plaintiff, not knowing the fraud practiced by defendant, and believing the estimate had been fairly made, agreed to such further deduction, and also the sum of $2.25 for each 1,000 feet of the apparent shortage by said false estimate, making in all a deduction of $57,501.75. The general issue being pleaded, a verdict and judgment for the plaintiff .for $42,137.27 resulted by a trial in the circuit court.\nMr. D. V. Samuels, and Messrs. Ramsdell & Benedict, for the appellant:\nNo affidavit was filed showing that the book contained any evidence material to the issue, nor was reasonable notice given. There was, then, no foundation for the introduction of secondary evidence. Field v. Zemansky, 9 Bradw. 479; Bank v. Mansfield, 48 Ill. 494.\nThe instruction relating to the effect of the failure to produce-books and papers clearly invaded the province of the jury. It is for the jury to say what inference is to be drawn from the failure of a party to produce evidence which is accessible to him. 1 Thompson on Trials, see. 1044; Sturtevant v. Wallock, 141 Mass. 119; Ashlock v. Linder, 50 Ill. 169; Railroad Co. v. Moranda, 108 id. 576; Gravel Road Co. v. Pierce, 96 id. 1 584; Frame v. Badger, 79 id. 441; Wickersham v. Beers, 20 Bradw. 243; Railroad Co. v. People, 96 id. 584; Graves v. Colwell, 90 id. 620.\nThe practice of instructing the jury as to what they may or may not infer from circumstances in evidence, is one not warranted by the statute. Practice act, sec. 51; Graves v. Colwell, 90 Ill. 620; Railroad Co. v. People, 96 id. 584; Law v. Woodruff, 48 id. 399.\nThe instruction singles out and makes prominent a particular fact, which, if true, is not conclusive. Haines v. Inter-Ocean, 20 Bradw. 207; Homes v. Hale, 71 id. 552.\nMessrs. Tenney, Hawley & Cofeeen, for the appellee:\nAs to the presumption 'arising from the non-production of' evidence, see 3 Blackstone\u2019s Com. 368; Wharton on Evidence,, sec. 1267; 2 Best on Evidence, sec. 411; 1 Greenleaf on Evidence, sec. 37; 1 Thompson on Trials, sec. 794; Winchell v.. Edwards, 57 Ill. 41; Downing v. Plate, 90 id. 268; Railway Co. v. McMahon, 103 id. 485.\nThis court has often decided that although an instruction may be objectionable, a judgment will not be reversed for that cause when, upon the whole record, it appears that the right is with the party in whose favor the instruction was given, and that justice has been done. Newkirk v. Cone, 18 Ill. 449; Dishon v. Schorr, 19 id. 59; Elam v. Badger, 23 id. 498 ; Insurance Co. v. Wetmore, 32 id. 221; Dacey v. People 116 id. 555." }, "file_name": "0533-01", "first_page_order": 533, "last_page_order": 540 }