Clearly the proof did not support those counts grounded’upon an acceptance by the defendant of the orders; but there was proof in support of counts 8 and 9, and Avhich Asms sufficient to prevent the general charge as to the entire complaint. Nor Avill the trial court he put in error for refusing the affirmative charge as to certain counts in the form in which they Avere asked in the case at bar. — Goldstein v. Leake, 138 Ala. 573, 36 South.458.
The trial court did not err in permitting the introduction of the orders. The plaintiff testified that Allen agreed to turn over to him the wages of the hands if he would feed them, and provided, further, that he got written orders from the hands. It was, therefore, proper for the plaintiff to show said written orders.
The trial court did not err in permitting the accounts due plaintiff in evidence. It is true Jones, who made the entry, could testify only to the correctness of the items sold by him; but he testified that the others were charged as he was instructed by the plaintiff, who sold the other goods. The plaintiff testified that he instructed Jones at the time of the sale to charge the goods as he sold them. Taking the evidence of both witnesses in connection, there was proof of the correctness of the accounts as introduced.
*292We think the trial court erred in permitting the witness Jones to testify as to the contents of the defendant’s books. It is true the plaintiff gave notice of a motion to produce, and for. aught we know the books were in court, or would have been upon demand. In order to lay a predicate for secondary evidence, there must not only be a demand, but a refusal or failure to produce. This evidence was objected to, because no predicate was shown, and the trial court erred in admitting same until the proper predicate was established for the introduction of secondary evidence.
The judgment of the circuit court is reversed, and the cause is remanded.
Reversed and remanded.
Tyson, C. J., and Dowdell and McClellan, JJ., concur.