ON PETITION EOR REHEARING.
Potter, Chief Justice.A petition for rehearing has been filed in this case by counsel for plaintiff in error. In disposing of it we deem it unnecessary to again enter upon a discussion of the question of the agency of the concern from whom the car was purchased by the defendant. We held that the evidence was sufficient to establish the fact of such agency, to the extent at least that it was authorized to sell the car with plaintiff’s warranty and supply the necessary parts and labor to put the defective car in proper condition. But it is stated in the brief in support of the petition for rehearing that the only evidence on that question was the testimony of the witness Roberts and -the defendant concerning the actions and statements of Mr. I-Iicks, particularly his statement that the several Studebaker companies were one and the same. That was not the only evidence on the question. The several letters written by the plaintiff to the defendant, referred to and quoted from in the former opinion, were not only competent and pertinent upon the question, but tended strongly as admissions to show the identity of plaintiff corporation as the one for whom the car had been sold and warranted, and also the agency of the concern who sold it.
*249It is argued also that -the question in the case as to this matter of agency was not the sufficiency of the evidence, but its admissibility. But we held that the evidence objected to was competent and admissible, and, therefore, referred to it in considering whether the evidence was sufficient to sustain the verdict. And we remain of the opinion that it was competent and properly admitted. As to certain letters shown by copy, we held, without deciding whether the notice to produce -the originals was sufficient or not to render the copies admissible, that the ruling admitting them would not, if erroneous, justify a reversal; the reason therefor being stated in the opinion. And, therefore, we said that we would not be inclined to scrutinize very closely the action of the court in admitting such copies, though we suggested that the court may have regarded the notice on the trial to produce as sufficient on the ground that a duty rested on the plaintiff to have the originals in court as papers intimately connected with the issues in the case.
Counsel also find ground for complaining of the decision in that, as stated in the brief, the plaintiff was held by this court to the same consequences as by the jury, because of its silence as to facts attempted to be proven by incompetent evidence. But we held that the evidence referred to was not incompetent, and we are constrained to adhere to that view, for we remain convinced that the trial court properly applied the rules of evidence relating to the admission of the declarations of alleged agents. We suppose that counsel refers to the remark in the former opinion, after reciting the evidence as to the agency of Hicks' and others, that no evidence was introduced by the plaintiff to disprove the fact of such agency, as well as a similar remark concerning the failure of the plaintiff to produce or offer in évidence the contract, if any, under which the Denver company was engaged in selling cars of the kind sold to defendant, or to offer to show what the arrangement was between the said selling company and the manufacturer, in which connection we said:
*250“It seems to us that there must have been some arrangement or contract, and that it was within the power of the plaintiff, especially as the secretary of the Denver company was a witness in its behalf, to show what such arrangement was, if it was different from that which might be inferred from its correspondence with the defendant and the other evidence in the case.”
Now that was not going out of the record or supplying something through the imagination to cure a failure of proof, as counsel seem to suggest. We had in mind a familiar rule of evidence, which is stated in Jones’ Commentaries on Evidence as rewritten by Horwitz (The Blue Book), as follows:
“It is a well-settled rule of evidence that when the circumstances in proof tend to fix a liability on a party who has it in his power to offer evidence of all the facts as they existed, and rebut the inferences which the circumstances in proof tend to establish, and he fails to offer such proof, the natural conclusion is that the proof, if produced, instead or rebutting, would support, the inferences against him, and the jury is justified in acting upon that conclusion.” (Vol. 1, Sec. 19.)
In Jones on Evidence, 2nd Ed., Sec. 19, the presumption from failure to produce evidence is thus explained: “The mere withholding or failing to produce evidence, which under the circumstances would be expected- to be produced and which is available, gives .rise to a presumption against the party. It is a presumption less violent than that which attends the fabrication of testimony or the suppression of documents in which other parties have a legal interest; but the courts recognize and act upon the natural inference that the evidence is held back under such circumstances because it would be unfavorable,” and the author quotes the following remark of Lord Mansfield in Blatch v. Archer, Corp. 66:- “It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced and in the power of the other to have contradicted.”
*251The rule is referred to in Wigmore on Evidence (Vol. 1, Sec. 285), and the learned author concludes the discussion of the matter by saying: “The non-production of evidence that would naturally have been produced by an honest and therefore fearless claimant permits the inference that its tenor is unfavorable to the party’s cause.” Several cases are then cited and quoted from to illustrate the rule, including Blatch v. Archer, supra, and R. v. Burdett, 4 B. & Ald. 122, wherein Best, J., said: “If the opposite party has it in his power to rebut it by evidence, and yet offers none, then we have something like an admission that the presumption is just.” Of course, if the case of one party is not established by competent evidence, it is not necessary for the other to produce any, and no presumption will in such case arise against him. But that is not the situation in this case in our view of the evidence.
We said in the former opinion, referring to the objection to the admission of copies instead of the originals of certain letters, that they were admitted as explanatory of plaintiff’s subsequent letters. Counsel do not so understand the record. What the trial court said when first ruling that such copies be admitted is this: “As part of this correspondence has gone in, I believe I will permit this in evidence.” Upon that statement our remark was based that the copies were admitted as explanatory of the subsequent letters, the originals of which had been admitted, and that seemed to the writer to express what was intended by-the language quoted. It may 'be that it does not correctly represent the thought in the mind of the trial court, but we think it immaterial, if it does not. The only effect of the letters, as stated in the original opinion, was to explain the later correspondence. Counsel also seem to challenge the correctness of the statement in that opinion to the effect that such copies were admitted following a ruling at first sustaining an objection thereto, after the defendant had further testified showing the details of mailing the letters he had written and the re-, turn of the one he had received, and identifying the copies. *252There is just this much to sustain counsel’s understanding of that matter, if it differs from the writer’s. The record shows that the objections were at first sustained. Then came the demand for the production of the originals. Following the explanation of the plaintiff’s counsel in reply to such demand, the court made the remark quoted above directing that the copies be admitted. But counsel for plaintiff then proceeded to cross-examine the defendant, who was on the stand, and after one question had been propounded and answered, another objection was interposed to the copy of one of the letters, on the ground that no foundation had been laid for secondary evidence, whereupon the trial judge stated that he did not know that sufficient foundation had been laid, and defendant’s counsel at once proceeded to examine him relative to the mailing and the accuracy of the copies of the letters he had written and the original of the one he had received and returned; and he was cross-examined upon the matter. The objections to the copies were then renewed, and overruled. Thus, they were not finally admitted until the further testimony mentioned in the opinion. This is, however, immaterial, in view of the ground upon which the exceptions to said rulings were and must be disposed of by this court, viz: that as merely cumulative evidence the admission of the secondary evidence, even if erroneous, would not justify a reversal.
In commenting upon the evidence relating to the damages, counsel overlook the testimony of the defendant that the car he received was practically of no value, as well as other evidence explaining the condition of the car. There ought to be no difficulty in understanding the ground or the reasoning upon which we held the two instructions as to the measure of damages not inconsistent when applied to the evidence in the case, and that the case should not be .reversed for a technical misstatement of the law in one of said instructions. We think it unnecessary to add to what was said in the original opinion concerning those instructions.
One of plaintiff’s contentions on the trial appears to have been that several causes of action were stated in defendant’s *253counter-claim, on which only the case was tried, and, at the close of the evidence for defendant, the plaintiff moved that the defendant be required to elect upon which such several causes of action “he seeks to proceed,” whether on the written warranty, the oral warranty, an implied warranty, or upon a right to recover back the money expended. It is now insisted that the refusal of the court to direct such election was error. The point was not made in the original brief, and the exception to the ruling was, therefore, waived.
We perceive no good reason for granting a rehearing, and therefore, the application will be denied.
Beard, J., concurs. Scott, J., did not participate in this decision.