¶1 On Rehearing.
¶2 The petition for rehearing filed by the defendants in error called to the attention of this court certain evidence in the record which they contend establishes by competent evidence the loss of the letter, the contents of which were proved at the trial by parol evidence, and on this showing a rehearing was granted.
¶3 Upon a careful re-examination of the questions presented on appeal by the plaintiffs in error and by the defendants in error in. their cross-appeal, we are of the opinion that all of said questions were correctly decided by the court in the opinion by Mr. Commissioner Rummons, except the one on which the rehearing was granted.
¶4 The trial court did not err in permitting the witness Pondrum to give, parol testimony of the contents of the letter, which he testified he had received from Adams & Melson. As appears from the original opinion, Mr. Pondrum testified that he sent this letter to Mr. Holley, at Sinton, Tex., and that Mr. Holley had informed him that the letter was stolen from him. This testimony clearly showed that the letter was beyond Mr. Pondrum’s control and that he could not produce the same at the trial. If this evidence, standing alone, was not sufficient to prove that the letter was lost, it was certainly sufficient when supplemented by the testimony of Mr. Holley, which is as follows:
“Q. Mr. Holley, where were you working in September, 1913? A. In Texas. Q. For whom were you working? A. King-Collie & Co. Q. Do you recall going to Sinton, T-ex., on or about the 20th of September, that year? A. Tes, sir. Q. What was the purpose of your visit? A. I went to try to get some cotton from Mr. Martin. Q. Did you receive a letter from Mr. Pondrum then? A. Tes. sir. Q. I will ask you if it contained a letter from Adams & Melson? A. Tes, sir; to Mr. Pondrum. Q. What became of it? A. It was stolen out of my pocket. Q. And you were unable to recover it? A. Tes, sir; I was. Q. Did that letter relate to the cotton you were to receive from Martin? A. It did.”
¶5 The learned commissioner doubtless overlooked this testimony when he stated in the original opinion that the evidence of the loss of the letter was purely hearsay, and that no connection was shown by Mr. Holley’s testimony between the letter stolen from his pocket and the letter, the contents of which were testified to by Mr. Pondrum. Attention was not called to this testimony in the original briefs. It will readily be seen that Mr. Holley testified that Mr. Pon-drum had written to him at Sinton, Tex., inclosing the letter from' Adams & Melson, that this was the letter stolen from his pocket and that he had been unable to recover it.
¶6 Where a party makes a showing at the trial that the primary evidence is lost, or destroyed, or otherwise unavailable without his fault, it is not error to permit the introduction of secondary evidence.
¶7 There being no reversible error in the record, the judgment is affirmed.