Baumhauer v. Mobile Electrical Supply Co.

52 So. 732 | Ala. | 1910

McCLELLAN, J.

The motion to strike the bill of exceptions because violative of rule 32 (Civ. Code, p. 1526) is overruled. The construction of the bill is close upon the border line of a violation of the rule, in the particular that questions and answers, not the subjects of objections and exceptions, are often set out, verbatim, in the bill. The bill is not framed in strict accord Avith the requirements of the rule, but the departure from these requirements is not so flagrant as to lead to the imposition of any of the penalties of the rule.

The cause of action is set forth in common counts. The plaintiff (appellee) engaged to wire for electricity a building of defendant (appellant) in the course of construction. The contract provided that 85 per cent, of the stipulated gross price should be payable on “roughing in, balance after acceptance of work by city electrician.” The building burned before the electrical Avork Avas completed. The recovery sought is of the 85 per cent, payable on “roughing in.” The appellant expressly waives in brief insistence upon the first assignment.

There was no error in declining to exclude the an-SAver of the witness, Sconyers, set out in the second assignment. While the answer employed the contract term, “roughing in,” it in the same breath defined that term. The motion to exclude (most generally) portions of the testimony of the witness, Sconyers, was properly overruled. The Avitness had testified without objection that the “roughing in” part of the work had been completed before the fire, whereupon the indicated percentage of the contract price became payable.

On the cross, the counsel for appellant inquired as to the details of what was, in fact, done in “roughing in,” to which the witness replied, in substance, that he could not answer without the plans, not then available to him. The motion’s object was to eliminate from the jury’s consideration all of the witness’ evidence on the subject of “roughing in,” including that wherein he testified to the completion of that feature of the work. Obviously, the inability of the witness to give the details of the work stated without the aid of the plans, did not render inadmissible the general statement already made by the witness that the indicated feature of the work, viz., “roughing in,” had been completed. A; witness might well, without objection, testify that a bridge had been completed according to contract, when, unaided by plans and specifications, he could not tell minutely every act performed in construction.

The evident conclusion of the court on the issues of facts finds substantial support in evidence before it. However, if that were not so, review of the conclusion of the court could not be had here, for the reason that no sufficient recital of the finding of the court appears in the bill of exceptions. — Davis v. Simpson Coal Company, 162 Ala. 424, 50 South. 368.

The judgment of the court is affirmed.

Affirmed.

Simpson, Mayfield, and Evans, JJ., concur.