I feel impelled to dissent from the conclusion of my Brethren that this motion should be overruled. I dissent on the one ground that the evidence in the record does not support the judgment. In his petition plaintiff alleged:
"Among other considerations, said bill of sale or transfer provided that the said A. T. Eddingston assumed and agreed to pay off and satisfy all indebtedness incurred by said partnership in the raising and selling of rice," etc.
The record shows that notice was given Eddingston to produce the bill of sale upon the trial of the case. This was not done, because, as shown by the record, the chief counsel or member of the firm representing Eddingston, Judge John M. Conley, former Chief Justice of this court, was out of the city, and the safe in which the paper was lodged was locked, and the junior counsel, *Page 956 who was conducting the trial on the part of Eddingston, could not get into the safe. My Brethren say that Eddingston "refused" to produce the bill of sale. This is a rather harsh statement of the matter under the facts. It was in no wise shown to be a deliberate refusal to produce the paper, but it was not produced under the circumstances stated.
Having pleaded a written contract, the burden was upon plaintiff to prove same as alleged. After a careful consideration of the evidence, I have concluded that there is no proof in the record that Eddingston, in the bill of sale, assumed the payment of the debts as alleged by plaintiff. The witness Daniels, upon whose testimony plaintiffs case rested, and upon which my Brethren rest their conclusion, testified:
"We gave Eddingston a bill of sale to the rice and implements and to the mules and everything, and he was to assume whatever debts we owed; we gave him a list of what we owed, and I went to Batson and went to work in the oil fields and didn't hear any more about it."
"That bill of sale was in writing: That bill of sale was written up in Judge Conley's office. After that bill of sale was written up, I signed it; Mr. Eden also signed it; that bill of sale was signed in Judge Conley's office here in Beaumont. I did not get a copy of it at the time; neither did Mr. Eden get a copy of it at that time. I do not know where the original of that bill of sale is now. I have never seen the original of that bill of sale since the time I signed it. After that bill of sale was signed up, Mr. Eddingston taken it. We had an arrangement with Mr. Eddingston when we turned that property over to him. He said that he would dispose of the property and pay off these debts and if there was anything left he would give us our part of it. At that time there was also an arrangement with Mr. Eddingston whereby he assumed liability for these debts. He said that he was going to have to pay them, or was going to pay them, and he said that he was going to sell the property and pay them with the money."
"I will state the terms of that bill of sale as near as I can; the best I can remember about it is it just described the property and where itwas located; that bill of sale included the rice. There was not any property retained by Mr. Eden and myself that we did not put into that bill of sale."
This is the whole of the testimony that throws any light on the question of whether in the bill of sale Eddingston assumed the payment of the debts in question. It is seen that the witness nowhere testifies that the bill of sale contained any sort of stipulation that Eddingston was to assume the payment of the debts. The statement, "We gave Eddingston a bill of sale to the rice and implements and to the mules and everything and he was to assume whatever debts we owed," falls far short of saying that the assumption of the debts by Eddingston was written into the bill of sale. The record, when read as a whole, shows that Daniels and Eden owed Eddingston for supplies and money advanced to them far in excess of the value of the property conveyed by the bill of sale, and it appears clear, I think, that Eddingston took over the property mentioned in the bill of sale to make himself whole as far as he could in the matters for which he had actually financed them. Moreover, Daniels testified:
"We had an arrangement with Mr. Eddingston when we turned that property over to him. He said that he would dispose of the property and pay off these debts, and if there was anything left would give us our part of it. At that time there was also an arrangement with Mr. Eddingston whereby he assumed liability for those debts."
The property was turned over to Eddingston by virtue of the bill of sale. Daniels says that at that time (when the property was turned over to Eddingston, whether at the time the bill of sale was executed in Judge Conley's office in the city of Beaumont, or when the actual delivery of the property was made is not shown) there was also an arrangement by which Eddingston assumed the debts. I think a reasonable interpretation of the testimony is that the expression "also an arrangement" denotes an additional arrangement to the bill of sale. My Brethren have, in effect, construed this testimony into a statement that the bill of sale actually contained an agreement on the part of Eddingston to assume the payment of the debts up on the consideration expressed in the bill of sale. It seems to me that the very opposite conclusion is warranted from the actual language of the witness; that also another arrangement in addition to that in the bill of sale was made. Furthermore, when Daniels was called upon to state the contents of the bill of sale, he did so, and nowhere so much as hints at an assumption by Eddingston of the debts being contained in it. He says:
"I will state the terms of that bill of sale as near as I can; the best I can remember about it is it just describes the property and where it was located; that bill of sale included the rice."
It is not reasonable to suppose that he would have forgotten or neglected to state that which was the very heart of the case, if it had actually been contained in the bill of sale. But my Brethren, in effect, say that notice was given Eddingston to produce the bill of sale, and that he "refused" to do so, and that therefore the presumption should be indulged against him that the bill of sale did contain the assumption clause as alleged by plaintiff. I have no cavil with my Brethren as to the general rule, but I do not think that it warrants the presumption of the plaintiff's whole case without proof of a "written" instrument as pleaded by plaintiff. *Page 957 He made no case, and the mere fact that notice to produce the bill of sale was not complied with did not, in my opinion, warrant the presumption drawn, nor could it warrant the considering of such failure as a circumstance or inference of such strength as to supply the lack of secondary evidence sufficient to form the basis to which circumstances and presumptions could be properly added.
Where notice to produce a written instrument is given, the failure to do so only gives the right to prove its contents by secondary evidence, and surely does not authorize an absolute presumption that its contents are as alleged by the party pleading same. I do not think that my Brethren will insist that Daniels any where testified that the bill of sale contained the assumption of the debts by Eddingston, as alleged by plaintiff, for the language of Daniels is too plain. They seem to have indulged the presumption that he intended to do so, and hence, as Eddingston did not produce the bill of sale, the further presumption should be indulged that said assumption was written into the bill of sale. That carries the rule too far. The right to offer secondary evidence of the contents of an instrument in writing under the circumstances was open to plaintiff, and, as he failed to make any such proof, the circumstances of Eddingston's failure to produce the bill of sale does not justify a finding that the assumption clause was actually in the instrument, and that in my opinion is, in effect, my Brethren's holding. Gayle v. Perryman, 6 Tex. Civ. App. 20, 24 S.W. 850. In the case cited, it is said:
"The consequence of a failure to produce a deed at the trial upon proper notice from the opposite party is to make secondary evidence of its contents competent, and not to prove the contents as alleged."
But my Brethren say:
"While testifying in his own behalf, appellant did not deny that the written bill of sale contained the stipulation as pleaded by appellee."
He was not asked as to the contents of the bill of sale. He made no admission as to the alleged contract of assumption. Why should he deny it? Plaintiff had the burden of proving his allegation that the bill of sale contained the agreement to pay the debts. Plaintiff made no such proof. Daniels, when called upon to state the terms of the bill of sale, does not and did not even hint at anything in it about Eddingston's assuming the payment of the debts. Until such proof in some competent way had been made, appellant was not called upon to rebut it. The well-established rule that, where the battle rages around the question as to what are the contents of a written instrument, and the testimony is conflicting as to what they are, and one of the parties is in possession of the instrument, and, when duly notified by the opposite party to produce the instrument upon the trial of the case, refuses or neglects to do so, the failure to produce the instrument may be regarded as a circumstance against him, in my opinion has little or no application to the facts as shown in the record, and at best could not go to the extent of establishing plaintiff's case.
Under the facts as disclosed by the record, I do not believe this judgment against appellant, by reason of which he will be called upon to pay debts neither contracted for by him originally, nor shown to have been assumed by him later, should be permitted to stand, and so I respectfully dissent from the order of my Brethren in overruling appellant's motion.