On petition for rehearing, plaintiff in error, defendant below, points out that the evidence of indebtedness on which plaintiff below recovered judgment, consisted largely of a letter dated January 27, 1904, which purported to be a statement of account, written by the original defendant below, J. M. Barrs, a practicing attorney, to plaintiff's intestate, C. W. DaCosta, a client and friend of Barrs, in which Barrs acknowledged having received for the account of DaCosta cash and notes aggregating $19,253.18. Judgment was rendered for this sum, *Page 7 with interest from the date of the statement. The statement referred to was rendered about seven years and eight months before the death of plaintiff's intestate C. W. DaCosta, during which time it appears that Barrs and DaCosta remained close friends and associates. This suit was begun about nine years and five months after the date of the letter, and nearly two years after the death of DaCosta. Based upon this situation, plaintiff in error, by petition for rehearing, asserts that if the evidence in this case be sufficient to sustain the judgment rendered long after the death of both Barrs, the original defendant, and his client, DaCosta, the addressee of the statement and the creditor therein named, then the estate of no deceased lawyer would be safe against unjust suits based on old statements of indebtedness that were correct when made by the lawyer, but the indebtedness subsequently discharged, where the deceased lawyer's representative or heirs are unable to produce positive record proof of such payment when it is questioned long after the lawyer's death.
Whatever may be the force of this contention from an academic viewpoint, it does not appear to be applicable to the case at bar.
This case was commenced more than six years prior to the death of the original defendant, J. M. Barrs. The period of time last mentioned, and more, was consumed in an extended and somewhat dilatory contest over the pleadings. The suit was not tried after Barrs' death.
Although it may be primarily the duty of the plaintiff to bring his suit to issue and to trial, the defendant, if he wishes to do so, may always speed the cause to trial within a reasonable time — certainly in a cause of this nature, in much less than six years. After the cause was at issue, and after the death of the defendant, it was more than two years before the case was brought on for trial before the *Page 8 Referee. Thus it will be seen that the cause was fully pending from June, 1913, to the death of the defendant, more than six years later, and for approximately two and one-half years thereafter before the testimony was taken.
Of course, the length of time elapsing between the commencement of an action and the trial thereof does not affect the measure of proof required of the plaintiff to establish his claim. Those circumstances, however, afford some degree of aid in considering the probability of an unjust judgment having been rendered, as is inferred by the petition for rehearing, because of the death of the original defendant and the consequent inability of his executrix to prove the fact of payment as asserted by the defendant in his plea.
In view of the progress of this suit as shown by the record, we are not convinced that it presents an instance where an unjust judgment may have been rendered because of the unfortunate interposition of the hand of death. From the bringing of the suit to the death of the original defendant, more than six years elapsed, ample time, it seems to us, for the defendant during his lifetime to have compelled a settlement of the pleadings and insisted upon a trial so that he might refute the plaintiff's claim, if such claim was unfounded or a good defense existed.
Although the evidence presented by the plaintiff is perhaps somewhat meager, it was enough to make out a prima facie case at the trial, and it is not so deficient in law as to require a reversal under all the circumstances. Under the pleadings, when the plaintiff below had made out a prima facie case, the burden shifted to the defendant to prove his pleas of payment and the statute of limitations.
In the petition for rehearing plaintiff in error also renews the contention made in the original assignments of error that the Referee erred in refusing to permit the witness, *Page 9
P. H. Odom, to testify to certain conversations between himself and Mr. C. W. DaCosta, which occurred during the latter's lifetime. Although it may sufficiently appear that Mr. Odom was not an interested party, so as to place him beyond the inhibition of Sec. 2705, Rev. Gen. Stat. 1920, it does not sufficiently appear from the question propounded to this witness that his reply thereto would be relevant to the issue. When an objection is sustained to a question, and the witness is not permitted to answer, unless it plainly appears from the question propounded that the answer of the witness would be relevant, it is the duty of the party propounding the question to make a sufficient proffer of what he intends to prove by the witness in answer to the objectionable question, so that the court below, and subsequently this court, can determine whether or not the proposed evidence would be material. Otherwise, the error is not made to appear. Boykin v. State,
With respect to the proffered testimony to be given by the witness Miss Alice Hunt, the proffer does not show that this witness was a disinterested party, as is expressly required by Sec. 2705, Rev. Gen. Stat. 1920, in order to take the testimony out of the inhibition of the statute.
Rehearing denied.
BROWN, C. J., AND WHITFIELD, ELLIS, TERRELL, STRUM AND BUFORD, J. J., concur.
