
    Perry vs Archard.
    Opinion delivered October 30, 1897.
    
      Burden of Proof — Right to Open and Close — Discretion of Court.
    
    Defendant pleaded failure of consideration of the note sued on by plaintiff, and asked that he be allowed to assume the burden of proof and to open and conclude the argument to the jury. Plaintiff alleged that he owned the note sued on, and was an innocent purchaser of same for value before maturity. Held, The right to open and close the argument in a casd in which the defendant alleges new matter, is largely in the discretion of the trial court and it is not an abuse of discretion in this cause to allow defendant to open and close.
    
      Written Instrument — Secondary Evidence — Error.
    The court below permitted appellee to testify in regard to a certain written application for a policy of life insurance. Ap-pellee did not show that any diligence was used to obtain the production of said written application in court. Held, It was error to permit appellee to prove its contents by secondary evidence.
    
      [Promissory Hole — Consideration—Premium on Life Insurance Policy.
    
    Appellee gave the note sued on in payment of the first years I premium on a policy of life insurance. The policy issued was a I twenty year policy. He claims to have applied for a fifteen I year policy. He received the twenty year policy, retained it [ for a year and made no objection to the terms being twenty I years instead of fifteen. Held, There was no failure of con-I sideration. The admitted facts in the case entitled plaintiff I to a verdict and the court below should have instructed the I jury upon its own motion to return a verdict for the plaintiff I for the amount due on the note.
    
      ^Promissory Note — Innocent Purchaser — Agency.
    I The note was taken by one Kone a subagent of the insuranc e company working under plaintiff. Held, That the plaintiff was responsible for Kone’s act and could not be an innoci purchaser of the note.
    Appeal from the United States Court for the Souths District.
    C. B. Kilgore, Judge.
    Suit by C. E. Perry against P. Arohard on a pror sory note. Judgment for defendant. Plaintiff appe^
    Reversed with instructions to render judgment for plair for the amount due on the note.
    This suit was brought by C. E. Perry, appellant, -\| was plaintiff below, against appellee, P. Archard, who defendant below, in the United States commissioner’s cq at Ardmore on September 24, 1890, upon a promissory rj payable six months after date to Q. B. Kone or order, interest at 12 per cent., and an attorney’s fee of 10 per cl in case of legal proceedings, and was signed by P. Archa the appellee. The note was indorsed in blank by paj This suit was tried in the commissioner’s court on Nover ' 17, 1890, and the trial resulted in a judgment for appel from which judgment appellant prosecuted his appeal tol United States Court for the Indian Territory at Ardml On October 29, 1895, this suit was tried in the United St| Court, and on said trial appellant alleged he owned the sued on, and was an innocent purchaser of the samel value, before maturity. Appellee admitted in his plea] that he executed and delivered the note sued on to Kone; that appellant obtained the same from said Kone f valuable consideration, before maturity; and that appel was entitled to recover unless appellee showed that the | sideration of the note sued on had failed. Appellee I asked that he be allowed to assume the burden of proof ]| and to open and conclude the argument to the jury, to ‘.ich request appellant objected, because appellant claimed :1 pleaded that he was an innocent purchaser of said note 1 value, before maturity, without any notice of any failure consideration, which appellee declined to admit. The irt overruled this objection of appellant, and permitted }ellee to open and conclude the argument of the case to i jury, to which ruling appellant, in open court, duly exited. Upon said trial, appellee proved by himself that note sued on was executed for an annual premium on a insurance policy, for which he made application to the ritable Life Insurance Company of New York through its nt, 0. B. None Appellee and his two witnesses, S. S. ruts and W. H. Usrey, all three testified that said applica-i was in writing. Appellee and said witness Evants were i permitted by the court to testify that appellee applied a 15-year policy through said Hone as agent, and that he úved a 20-year policy instead, to which testimony appel- ;, at the time it was offered, objected, because,- said ap-ation being in writing, oral testimony as to its contents inadmissible, no predicate having been laid by appellee the introduction of secondary evidence of the contents of application, and to the overruling of which objections ellee duly excepted. It was admitted upon this trial by filant, in open court, that appellee had in his possession he time of the trial of this cause in the commissioner’s ■t on November 17, 1890, the life insurance policy issued i the application made by appellee to said Equitable Life [■ranee Company through said Kone. Appellant filed his Hon for a new trial, which was overruled, to which action He court appellant duly excepted. Appellant now pro-Htes this appeal.
    
      O. L. Herbert and H. L. Stuart, for appellant.
    
      night to open ana cios6i
    
      O. M. Campbell and Johnson, Cruce & Cruce, for appell
   Springer, C. J.

(after stating the facts.) The pellant’s first assignment of error is to the effect that court erred in granting the appellee the right to open conclude the argument to the jury on the trial of said caí because the burden of proof was placed by law upon ap; lant, as plaintiff in the case, and because appellee faile< admit that appellant was an innocent purchaser for va before maturity, of the note sued on, as appellant alleged claimed. The right to open and close the argument il case is, in cases in which the defendant alleges new ma| of defense, largely in the discretion of the trial court; unless it appeared that, such discretion had been abusecj the prejudice of the opposite party, the case should nc reversed on this account.

The second assignment of error is as follows: court erred in permitting appellee and his witness Si Evants to testify that appellee applied to the Equitable Insurance Company through O. B. Kone, its agent, f<| fifteen-year life insurance policy, — that is, for a life iij anee policy on which fifteen annual premiums would ha-¶ be paid, and which would mature in fifteen years, — the j herein sued on being executed for the first annual prer on said policy, because appellee, said Evants, and appl other witness, W. H. Usrey, all testify that appellee mJ written application for said policy to said company, vl said written application was the best evidence of the kil policy applied for by appellee. No diligence of effort! shown by appellee to obtain the production of said wJ application in court. No written notice to produce| written application in court was ever served on appella any time. No verbal notice to produce said written apj tion in court was ever given appellant until after the tr the United States Court, from the result of which trial eal is taken, had commenced. The possession of said hten application was not traced to appellant, and no ¡iicate of any kind was laid by appellee for the introduc-of secondary evidence of the contents of said written llication. ”

Written Instrument-Notice to produce.

The rule is well settled that secondary evidence of the Lents ‘of a written ^ instrument cannot be given if the linal is shown or appears to be in the possession or power Iverse party, unless the party proposing to offer such Indary evidence gives such notice to produce it as the |t regards as reasonably sufficient to enable it to be pro-id. Steph. Dig. Ev. p. 189, and authorities therein cited, object; of the notice to produce is to enable the party to | the document in court, and, if he does not, to enable his pnent to give parol evidence of its contents. All rea-jble means to procure the original must be taken before lid ary evidence can bo given. Bourne vs Buffington, Mass. 481; U. S. vs Duff, 6 Fed. 45; DeWitt vs Prescott, Mich. 298, 16 N. W. 656; McPherson vs Rathbone, 7 210; Insurance Co. vs Cadwell, 3 Wend. 296. Itap-from the record in this case that no notice was given ipellant or to the insurance company of which he was |gent to produce the written application which appellee to the company, and which would have disclosed the ¡is to whether he had applied for a 15 or a 20 year policy. deposition of O. B. Kone, who was the agent who |s out the application, it is stated that the application writing, and the policy was “to run for a period of ly years, the policy being a twenty-years tontine, on pdinary life plan.' ’ The appellee testified that the that he applied for was to run for 15 years, and that ilined to accept this policy, because it was to run for |ars. This conflict in the parol evidence shows the im-íce and necessity of the rule, which requires all rea-|le means to be taken in order to procure the original documents before secondary evidence of their contents be given. In the case at bar the question as to whether pellee applied for a 15-year or a 20-year policy was 1 material. In fact, the case seems to have turned on point. Appellee pleaded failure of consideration, anc alleged failure was that he had not received the 15-policy, for which he applied, but a 20-year policy inst The fact was found, on the parol evidence, in favor of pellee’s contention. The written application would definitely settled the question. It was error to permi pellee to prove its contents by secondary evidence, the per notice not .having been given for the production o original.

Written Instrument-Secondary evidence of contents— Error.

The third assignment of error is as follows: court erred in not giving the following charge, requestJ appellant: “That if the defendant, the purchaser of I policy, failed to return it within a reasonable timei kept it until the time was out, he would be estop J This instruction, or the substance of it, should been given to the jury. It has the merit of brd but the court might with propriety have elaborated j suggested in appellant’s brief, so as to have pres clearly to the' jury the principle ‘ ‘that appellee would topped from claiming that he had received a policy ing in twenty years instead of one maturing in fifteen if he failed to return the twenty year policy witlj reasonable time, and kept it until the year during whiij policy he contracted to obtain was kept in full force premium represented by the note sued on had exj The true test as to whether there had been a failure o| sideration was this: In the event of the death of the ini the appellee in this case, during the year for which hi insured, could the beneficiaries of the policy have rec| from the insurance company the amount for which insured? If appellee had died with this policy in hid ion would not the company have been liable? What de-e could it have set up to defeat an action on the policy? id received the premium for one year. The agent had the money to the company, and loaned the insured an ant sufficient to pay the premium. The policy was add to be in the possession of the insured for the whole for which the premium had been paid. If the insurance aany had refused to pay in the event of death, and had, suit to recover the amount of the policy, interposed a or answer to the effect' that it was true the company been paid the premium for one year, yet that the insured borrowed the money with which to pay the premium, Lad given his note therefor, payable in six months, but efused to pay the note, claiming that he had received a ty year policy instead of a fifteen year policy, such ense would have been promptly set aside on demurrer, premium on a twenty-year policy for one year was less it would have been on a fifteen-year policy for the same nt. Hence the insured could not complain that for the ear for which he had paid for insurance he had paid more the insurance for that period of time was worth. If he eally desired a fifteen-year policy, the exchange could have been made within the year. He 'was in no wise d or prejudiced by mistake as to the time the policy was ture. He had one year of life insurance, — all the time ich he had paid, — and, after receiving the benefit of the nee for one year, he was estopped from pleading a [e of consideration. It will be seen from the statement |S case that it was admitted upon the trial that appellee n his possession at'the time of the trial in the commis-ps court the insurance policy issued upon the applica-ade by appellee. Counsel for appellee accept, in rief, this statement as true. One year had elapsed, time of the trial in the commissioner’s court, since the 1 the policy. During all this time it was held by the insured, and during this time the company was liable to to the beneficiaries of the policy, in case of his death, full amount for which he was insured. There was, theref no failure of consideration. The admitted facts in the ( entitled the plaintiff below to a verdict, and the trial ci should have instructed the jury, upon its own motion, tc turn a verdict for the plaintiff for the amount due on note. Instead of doing this, the court submitted the ques to the jury as to whether there was a failure of considera! The admitted facts showed that there was no failure.

Court should have instructed a verdict.

Plaintiff! not innocent purchaser.

There is much contention shown in the record a whether the appellant was an innocent purchaser of the for value, before maturity. ' This fact, in view of the e ence, was immaterial. Kone, the payee of the note, wa, he testified, working under Perry as subagent for the company. Perry was charged with knowledge of K acts, and he stood in the same position that Kone did, s< as the contract with appellee is concerned. He was i| sense an innocent purchaser of the note. Counsel fo pellant should have conceded this point. Contention f untenable position always obscures, and frequently p| dices, the merits of a case. The judgment in this case i| versed, and the cause is remanded, with instructions to der a judgment for appellant for the amount due on the according to its tenor and effect, and for costs.

Clayton and Thomas, JJ., concur, not being present, did not participate. Townseni  