
    No. 464
    CONTINENTAL SUGAR CO v. HULSE & ALLEN
    Ohio Appeals, Sixth Dist., Lucas County
    No. 1311.
    Decided May 21, 1923
    EVIDENCE — (1) Oral testimony as to written instrument where instrument has been lost — (2) Error in admitting circular letter — (3) Right to special instructions — (4) Error in refusal to give proper written instructions.
    Attorneys — -Marshall & Fraser, for Continental Sugar Co.; Denman, Kirkbride, Wilson & McCabe, for Hulse and Allen.
   CHITTENDEN, J.

Epitomized Opinion

This was an action on an account against the Continental Sugar Co. The account contained five items under date of November 22, and No. 23, 1920, for official stenographer’s transcript of proceedings before the Federal Trade Commissions, said proceedings being Federal Trade Commission v. Amalgamated Sugar Co. The five items covered an aggregate of about 11,000 or 12,000 pages of transcript introduced in evidence in a proceeding before the Federal Trade Commission. The defendant filed a general denial and also pleaded a second defense in which it claimed that it offered to purchase from the plaintiff the opinion and decision of the Federal Trade Commission, but not a transcript of the testimony. The evidence consisted of various correspondence. This evidence disclosed that the defendant agreed to purchase one copy of the official report of the ’ proceeding, docket 303. The trial resulted for the plaintiffs, whereupon defendant prosecuted error. Held:

1. As the defendant was unable to produce a certain original letter on the the trial, and the plaintiffs testified that they had no copy of the letter, the court did not commit error in permitting the plaintiffs to testify orally as to the contests of such letter.

2. The coux-t committed error in permitting the introduction of a cex-tain circular letter which was sent out long after the order placed by the defendant.

3. When the evidence is concluded either parties may present written instructions to the court on matters of law, and request them to be given to the jury, which instructions shall be given or refused by the court before the ax-gument to the jury is commenced.

4. The error in refusing to give proper written insti-uctions befox-e argument on request is not cured by giving such instructions substantially in the general charge. As the evidence clearly disclosed that defendant purchased a copy of the official report of the Interstate Commerce Commission and not a transcript, the judgment of the lower court was manifestly against the weight of the evidence-

judgment reversed.  