53 Ind. 301 | Ind. | 1876
Complaint by David Chamness, the appellee, against Nathan Chamness, the appellant, on a quantum, meruit count, for board, washing, care, diligence, labor, etc., for the support and maintenance of Nathan Chamness, his wife and daughter, with a bill of particulars rendered.
Answer:
1. General denial.
2. Payment.
3. Set-off, for “boarding, clothing, keeping and taking care of plaintiff and his family, consisting of his wife and three children.”
4. Set-off, “that the plaintiff is indebted to him in a large sum, to wit, in the sum of two thousand seven hundred and fifty dollars, upon account, a bill of particulars of which is filed herewith,” etc.
Reply in denial, to, the second, third and fourth paragraphs of answer. Trial by jury, verdict for ' appellee. Motion for a new trial overruled, exception taken, judgment, and appeal to this court.
2. At the proper time, the appellant introduced Henry Reynolds, a competent witness, and put to him the following question:
“State what you know, if anything, of David Chamness’ getting poplar timber off of his father’s farm, within the last three years, and selling it to you, and getting the money himself for it.”
An objection was made to this question by the appellee, and sustained by the court, “ for the reason that no bill of particulars accompanied the answer.” The appellant excepted to the ruling of the court. The reason given for sustaining this objection is not sufficient. There was no demurrer to the answer, nor did the appellee move for a bill of particulars: These objections were therefore waived. Hanna v. Pegg, 1 Blackf. 180; Davis v. Jenkins, 14 Ind. 572; Board of Comm’rs, etc. v. Ford, 27 Ind. 17; Wolf v. Schofield, 38 Ind. 175; Pierce v. Baird, 48 Ind. 378; McClure v. McClure, 19 Ind. 185.
But the error of the court in placing its ruling upon an insufficient reason has not been made available here. It is not' shown what evidence was proposed to be elicited by the question asked the witness. It is true, the appellant, in his brief, says, “ When we offered this evidence, we informed the court that we expected to follow it by proof that the plaintiff received said lumber as a payment on his account.” But, upon diligent search, we are unable to find anything of the kind in the record. When the court below refuses to permit a question to be answered by a witness, the bill of exceptions must show the particular facts expected to be elicited, so that this court may judge of their materiality; otherwise, the error is not available. Curry v. Bratney, 29
Objections were sustained to several other similar questions for the same reasons given in the court below, which, for the reasons given here, cannot be made available.
3. The appellant complains, because the court, over his objection^ allowed certain witnesses, who were not experts, to testify as to the value of board. There is no error in this. It does not require a knowledge of any particular science, art, or skill, to testify as to the value of board.
4. The appellee put the following question to a witness: “Supposing that the defendant and his wife was” [were] “ unable to get to and from the table without help, and had to be helped at the table, and Abigail Chamness was insane, and it was necessary for some one to stay about the house all the time to take care of them; what would it be worth to board them and care for them per week, from October, 1870, to July, 1872?”
The court allowed this question, over the objection of the appellant, to be answered by the witness.
The appellant objects to this ruling, because the question is purely hypothetical, and therefore calculated to mislead the jury. There was evidence before the jury tending to show that “ the defendant and his wife” were aged people, and somewhat helpless; and that Abigail Chamness was their daughter, and insane; and that the appellee boarded them while in that condition. We do not perceive, therefore, wherein the ruling was erroneous.
5. The appellant insists that there was evidence before the jury tending to prove a contract between the parties that the appellee was to board the appellant and his family, and take his pay therefor in the real estate of the appellant, after he “was done with it;” and, in this view of the case, the appellant requested the court to give the following instruction to the jury:
The court refused to give this instruction to the jury, and the appellant excepted. The instruction is defective, as being applicable to the case assumed, because it does not show that “the old man was not done with his real estate;” in short, it does not sufficiently show that it was based on an executory contract subsisting at the time. Eor aught that appeal’s by the instruction, “ the old man” might have been “ done with his real estate,” and refused to make payment under such a contract, before the commencement of the suit—and there is evidence in the case tending to prove these facts—if so, then the appellee might recover on the common count, as stated in his complaint. For these reasons, we think the court committed no error in refusing the instruction.
Another similar instruction was asked and refused, but need not be particularly noticed, as it rests upon the same principle just decided.
6. The appellant requested the court to give the following instruction to the jury:
“ If you find from the evidence that the defendant told persons, other than the plaintiff or members of his family, while he was living with the plaintiff, that the plaintiff was taking good care of him, that'he liked to live with him, and that he wanted him well paid for it, and that he intended to pay him, and that he intended the plaintiff should have the farm, or a part of it, these statements would not be sufficient to entitle the plaintiff to recover in this action, unless you find that there was a contract between the plaintiff and
The court refused this instruction, and we think very properly. It amounts to instructing the jury as to the weight of evidence, which would be wrong under any circumstances.
7. The court gave the jury the following instruction:
“ If you find that it was agreed and understood between the plaintiff and defendant that the plaintiff was not to be paid for the board and washing charged for in the complaint,, and that the board was furnished and washing done by the plaintiff for the’ defendant with the understanding and agreement between them that the plaintiff was not to be paid for or receive anything therefor, then the plaintiff cannot recover for the same. But if it was agreed and understood between them, at the time the board and washing was” [were] “ done and furnished, that the plaintiff was to be paid for the same, then he would be entitled to recover whatever the same were reasonably worth.”
To the giving of this instruction the appellant excepted, and insists that, as the evidence tends to show that the parties lived together as one family, no implied contract would arise out of the facts which would entitle the appellee to recover for the board and services charged; that he could recover only upon an express agreement; and that, therefore, the charge is erroneous, or, at least, calculated to mislead the jury from the true issue in the case. Admitting that this view of the appellant is correct (Smith v. Denman, 48 Ind. 65), we cannot see that the instruction is erroneous. It might have been expressed in other words, giving the view insisted upon by the appellant more clearly; or the appellant might have requested an instruction embodying his views, and thus have raised the question; but we think the instruction, as far as it goes, is correct, and therefore not erroneous merely because it does not more fully state the law. Boffandick v. Raleigh, 11 Ind. 136; Carpenter v. The State, 43 Ind. 371; Hamilton v. Elkins, 46 Ind. 213.
The judgment is affirmed, with costs.
