Prayer for instructions and exception and assignment of error were made by defendant to the fact that defendant was plaintiffs’ witness, and the evidence was not sufficient to go to the jury on cer*28tain issues submitted. We will not go into this phase of the case, as the case goes back for a new trial.
Defendant excepted and assigned error as follows: “The plaintiffs’ attorney, in his argument to the jury, stated that defendant bad failed to produce certain books and records for which demand bad been made, and read to the jury from the case of Yarborough v. Hughes, 139 N. C., 199, relative to the effect of failure to produce documents in one’s control.” We think this exception and assignment of error should be sustained.
In Conn v. R. R., 201 N. C., 157 (160-1), Brogden, J., says: “The third class of inhibitions denies to counsel the right to read the decisions of the Supreme Court of North Carolina where such reading would reasonably tend to prejudice either party upon the facts. S. v. Corpening, 157 N. C., 621; Forbes v. Harrison, 181 N. C., 461; Elliott v. Power Co., 190 N. C., 62. Thus, in the Corpening case, supra, the Court said: 'As we understand the record, the counsel for the prosecution read the facts in Malonee’s case, relied upon as supporting evidence to the prosecutrix, and over defendant’s objection was allowed by the court to say in effect that a jury of Jackson County bad convicted Malonee, and the supporting evidence was much stronger “than in Malonee’s case,” etc. A new trial was awarded because the trial judge permitted such argument to be made. In the Forbes case, supra, counsel attempted to read a portion of the opinion in Bell v. Harrison, 179 N. C., 190, and upon objection by counsel for defendant the court declined to permit such reading, and this ruling was upheld. The court observed “that two cases grew out of said administration, and there was grave danger of prejudicing the defendants upon the facts as counsel was allowed to read the part of the opinion in the case proposed to be read by him.” ’ ”
The plaintiffs cite the case of Howard v. Telegraph Co., 170 N. C., 495 (497): “The court erred in refusing to permit the counsel to argue that the ruling in Cashion v. Tel. Co., 123 N. C., 267, applied to this case. Revisal, 216, provides that in jury trials counsel may argue the law as well as the facts to the jury. This is entirely distinct from the instances in which the court has refused to permit counsel to read the facts in one case as evidence in another.” This case is distinguishable from the Conn case, supra, and the present case.
The plaintiffs bad the receipt for $400.00. The defendant was plaintiffs’ witness and made no denial that the amount bad been received by him. The reading of the facts in the Yarborough case, supra, and the law applicable to same, would undoubtedly prejudice the jury and throw suspicion and discredit on defendant’s testimony, who was plaintiffs’ own witness. For example, at pp. 208-9, the law applicable to the facts *29in that case is thus stated: “It is the failure to introduce testimony, oral or written, which should be valuable to a party, that raises the inference against him that, if introduced, it would be detrimental to his case. The relevancy and weight of such a fact as evidence is established by one phase of the maxim omnia prcesumuntur contra spoliatorem, which is said to rest upon logic, and the presumption it raises to be reinforced by our everyday experience that men do not as a rule withhold from a tribunal facts beneficial to themselves. It is therefore laid down in the books as a well settled principle that where a party fails to introduce in evidence documents that are relevant to the matter in question and within his control, and offers in lieu of their production secondary or other evidence of inferior value, there is a presumption, or at least an inference, that the evidence withheld, if forthcoming, would injure his case.”
It will be seen that plaintiffs were attempting to impeach their own witness by reading the facts in the Yarborough case, supra, and the law applicable to the facts as above set forth, so as to cast suspicion and wrongdoing on defendant. The plaintiffs had the original receipt for the $400.00, and the fact that the stub showing this $400.00 receipt was torn out could in no wise injure plaintiffs. Reading the facts and the law in that case, under the facts and circumstances of this case, we think was prejudicial to defendant as the verdict of the jury indicated. The referee, from an elaborate finding of facts and conclusions of law, found that plaintiffs owed defendant $1,543.08. On the evidence of defendant, a witness for plaintiffs, the jury found that defendant owed plaintiffs $5,157.02. To say the least, it is an unusual verdict, and there was prejudicial error, as we have set forth.
For the reasons given, there must be a
New trial.
DnviN, J., took no part in the consideration or decision of this case.