Page:Federal Reporter, 1st Series, Volume 6.djvu/598

 586, FEDERAL REPORTER. �warehouse firm at Cairo Lad corresponded on the subject of the corn in question, and subsequent to the eighteenth of April, 1865, viz., the latter part of that month; and on this motion placed on file an original letter, in Mansfield's handwriting, which shows clearly that defendants did give an order to Mansfield, prior to the twenty-seventh of April, 1865, touoh- ing the corn in question, and its delivery by the freight agent of the railroad to warehousemen at Cairo. There is no way of determining its precise import, but, prima facie, it is the one testified to by defendants on the trial, and if it had been produced in evidence, must, we think, have changed the ver- dict. Defendants, prior to the trial, gave notice to plaintifs to produce the order of April 18, 1865, after having applied to the railroad freight agent at Cairo for it, and been by him inforrned that he had received no such order. Defendants, therefore, had a right to believe that plaintiffs still held it, and that a notice to produce would secure it at the trial. Theyhad no reason to suppose that plaintiffs had sent the order to a warehouseman at Cairo, as it was addressed to the freight agent of the railroad, and therefore were surprised at the trial by its non-production, and by the testimony of Mans- field wholly denying that he had received such order, or knew anything about one having been given. He did know an order touching that corn had been given. He knew that he had held it, and had transmitted it by letter to Halliday Brothers, warehousemen at Cairo, and that it was drawn on the freight agent and was made by defendants. It is mani- fest that the order was for the delivery of the corn in ques- tion to Halliday Brothers, if we look at their letters in reply to Mansfield of date respectively April 25 and 27, 1865, for in them Halliday Brothers object to receiving the corn on plaintiffs' account. Mansfield gave no intimation that there was any order whatever, denied the existence of one, and gave the court and jury to understand that defendants* testi- mony on that subject was altogether and entirely uptrue. If the order was not of the precise nature, or import testified to by defendantc, and yet an order was given at St. Louis April 18, 1866, the. jury was entitled to know that fact, and ��� �