228 F. 456 | 4th Cir. | 1915
“Within thirty days alter the final completion and acceptance of the work by the engineer and executive board, as evidenced by the final estimate and certificate of completion and acceptance, any balance remaining due to the contractor will be paid to him in cash.”
Firth, the city engineer, a witness for the plaintiff, after stating that he had supervision of the work and saw it almost dally during its progress, further testified :
“I examined and inspected the work after it was completed and accepted it as a compliance with the contract.”
He was thereupon allowed, over defendant’s objection, to answer this question:
“In that connection, in your opinion as an engineer, from your knowledge of the specifications and contract and your personal observations of this work, was it in compliance with the contract?”
It is insisted that this was an erroneous ruling because it permitted the witness to express an opinion upon the chief matter in dispute without stating the facts upon which that opinion was based, and numerous cases are cited which are claimed to support the contention. The rule invoked is well settled, but we are of opinion that it is not applicable. The witness had stated without objection that he examined the work and accepted it as complying with the contract, and we perceive no reason why it was not competent for him to testify that the work had in fact been done in accordance with the contract. The question he was asked, as the jury must have understood it, did not call for expert opinion, except in a qualified sense, but rather for his knowledge and professional judgment respecting the subject-of inquiry. It needs only a glance at the contract to see that the specifications were numerous and complicated, some of them distinctly technical. They related to the kind and quality of materials, their preparation for use, and detailed methods of construction. The witness was the defendant’s representative and agent. He was charged with the duty, as repeatedly appears in the specifications, of seeing that the contractor lived up to his agreement in each, particular. He could reject materials which did not meet the contract requirements, compel the contractor to take out and replace work which did not conform to the standard of construction, and even order the discharge of employés who disregarded his directions or were found to be incompetent. Under such circumstances, it seems plain to us that he was properly allowed to state as a fact that the work actually done was of the character and quality called for by the contract; and that his testimony was not incompetent, or otherwise in violation of the rule respecting expert opinion, because his answer involved professional judgment as
And this view accords with the decisions of the courts generally in analogous cases. For example, Schaefer v. Fly, 84 Conn. 501, 80 Atl. 775, Ann. Cas. 1912D, 899, is directly in point. That was an action on a building contract, and the architect who drew the plans and was familiar with the progress of the work was permitted to give his opinion that the work had been done properly and in accordance with the contract, without detailing the manner in which each item of work had been performed. In sustaining this ruling the Supreme Court of the state said:
“The main objection to this evidence was that the opinion of the witness could not be given, that he must state in detail'what he saw, and the various defects, and leave the conclusion of compliance with the contract to be drawn by the court between the contract and the work done. This is an erroneous view. The witness who qualifies as an expert and testifies to his familiarity with contract, plans, specifications, and changes therein, and with the work done, may give his conclusions as to the comparison between these, without detailing at length the manner in which each item of the work done has been performed. When the opinion of the witness in a case is evidence otherwise competent, and the subject of the investigation will be made clearer by its introduction, the opinion should be received. When facts sought to be proved are of so voluminous or complicated a character that their introduction would occupy much time, and might be difficult to understand' by themselves,, and these many facts are to be proved for the purpose of drawing a conclusion from them, the court may permit a witness who is qualified upon the subject of investigation, and has made the investigation,-to express an opinion without giving the details on which the opinion rests.”
Other cases in which it has been held that a qualified witness may state that the work of construction has been done in accordance with the contract are Kreuzberger v. Wingfield, 96 Cal. 251, 31 Pac. 109; Stark Grain Co. v. Harry Bros. Co., 57 Tex. Civ. App. 529, 122 S. W. 947; Tucker v. Williams, 2 Hilt. (N. Y.) 562; Taulbee v. Moore, 106 Ky. 749, 51 S. W. 564; and Johnson v. Griffiths & Co. (Tex. Civ. App.) 135 S. W. 683.
In this connection it may be observed, as the court observed in the Connecticut case, that the defendant had full opportunity by cross-examination of the witness to test the extent of his knowledge and the accuracy of his judgment. Instead of attempting in this way to discredit or weaken the testimony, the defendant apparently preferred to rely upon an exception to its admissibility. We deem it not doubtful that the question was properly allowed.
“While a special contract remains executory the plaintiff must sue upon it. When it ha£ been fully executed according to its terms, and nothing remains to be done but the payment of the price, he may sue on the contract, or in in-debitatus assumpsit, and rely upon the common counts. In either case the contract will determine the rights of the parties.”
Apart from this, however, we are of opinion that the testimony became immaterial and its admission harmless because the trial court excluded it from consideration by submitting the issue to the jury in the form of this question:
“What amount, if anything, is the plaintiff entitled to recover of the defendant under the terms of the contract?”
The effect of this charge was to eliminate the second cause of action and confine the jury to finding whether the contract had been performed in accordance with its provisions. And in a later part of the charge the learned judge again said:
“The question for the jury to determine under this issue is whether or not the pavement put down came up to the standard of that class of pavement put down as provided and stipulated in the contract. You have heard the evidence in this case. Was this done or not?”
Indeed, taking the charge as a whole, it is apparent that the right to recover upon a quantum- meruit was left out of account altogether, and that a verdict was rendered for the plaintiff because the jury, under instructions which limited the issue to the first cause of action, found that the work had been done in compliance with the contract. This being so, the proof of value became immaterial, and its admission furnishes no ground for reversing the judgment. Cunningham v. Springer, 204 U. S. 647, 27 Sup. Ct. 301, 51 L. Ed. 662, 9 Ann. Cas. 897.
“What amount, if anything, is defendant entitled to recover on its counterclaim?”
The jury answered that the city was not entitled to recover anything on its counterclaim. In view of this finding we are of opinion that the judgment should not be disturbed because the trial court refused to allow a witness for defendant to state what it would have cost the city of Charlotte.to malee the repairs claimed to be necessáry. The jury must have found that the repairs made by the contractor had fulfilled the obligation to keep the pavement in serviceable condition during the five-year period, and what the needful repairs would have cost the city became immaterial. In this connection, much is sought to be made of a letter written by plaintiff’s president in March, 1913, relating to the subject of these repairs. Without referring in detail to the Contents of this letter, it is sufficient to express the opinion that its meaning and intent were properly construed by the trial court, and that no prejudicial error was committed by refusing to allow defendant’s witness to state what it would have cost to make the repairs mentioned in the communication.
“The fact, gentlemen, that the pavement may have been of inferior hind or class, has no status in, this case, provided it was of the kind and class contracted for, whether that be a good pavement, a bad pavement, or an indifferent pavement”
“The action of tlje agent (or engineer, as he is called here), in passing upon and accepting the work, makes a prima facie case that the specifications and requirements have been complied with, and that, if the defendant denies that conclusion, the burden is upon it, by weight of the testimony, to show that plaintiff failed and to what extent.”
These instructions were predicated upon the opinion of this court in Jefferson Hotel Co. v. Brumbaugh, 168 Fed. 867, 94 C. C. A. 279, and the learned judge quoted to the jury the following syllabus from that case:
“Where a building contract constituted the architects the owner’s supervising agents, but did not in terms authorize the architects to issue a conclusive final certificate, an architect’s final certificate was only prima facie evidence that the work had been performed according to the contract, and placed the burden of proof on the owner to Impeach the same for error, mistake, omission, or concealment.”
Upon the point here considered we are unable to distinguish the Brumbaugh Case from the case at bar, and it follows, since we adhere to the views then expressed, that the charge in question must be held a correct application of the law to the facts developed at the trial. This is in no wise a variance with what is said in Sweeney v. Erving, 228 U. S. 233, 33 Sup. Ct. 416, 57 L. Ed. 815, Ann. Cas. 1914D, 905. That case merely holds, in a negligence action, that where the rule of res ipsa loquitur applies it does not have the effect of shifting the burden of proof. Obviously, the doctrine of res ipsa loquitur has no application to the present controversy.
“No person shall sue any city, county, town, or other municipal corporation for any debt or demand whatsoever unless the claimant shall have made a demand upon the. pqoper municipal authorities. And every action shall be dismissed unless the complaint shall be verified and contain the following allegations: (1) That the claimant presented his claim to the lawful municipal authorities to be audited and allowed, and that they had neglected to act upon it, or had disallowed it; or (2) that he had presented to the treasurer of said municipal corporation the claim sued on, which had been so allowed and audited, and that such treasurer had notwithstanding neglected to pay it.” l^evisal, § 1384.
Conceding that the complaint does not contain the allegations required by this statute, the conclusive answer to the contention is that it comes too late. This court is a court of errors only, and will not consider questions not raised in the court below. The objection that there has been a failure to comply with a condition precedent to the right to sue must be raised in the trial court, so that the plaintiff may have opportunity to avoid or remove the objection; it cannot be raised for the first time on appeal. Wetzel & T. Ry. Co. v. Tennis Bros. Co., 145 Fed. 458, 75 C. C. A. 266, 7 Ann. Cas. 426; Wilfong v.
“If it is desired to rely upon, these defenses, it was its plain duty to demand such independent ascertainment of them. It did not do so, hut it, in effect, sought the advantage of having them, if possible, secure for it a final judgment where it would have been entitled by reason of them to only a restricted one of dismissal without prejudice, and this by allowing them to be tried with other matters in bar by the same jury. Under the plain principles above set forth, it must be held to have waived these defenses in abatement. The court below could have excluded all evidence touching them upon the trial actually had, and it will therefore not be allowed to rely here upon the failure of them in the court below as ground of error.”
It is a general rule of common-law pleading that matters in abatement must be separately pleaded and tried, and that by setting up defenses on the merits and in bar of plaintiff’s claim, and especially by going to trial upon such defenses, the matters in abatement are deemed to be waived. Bailey v. Dozier, 47 U. S. (6 How.) 23, 12 L. Ed. 328; Sheppard v. Graves, 55 U. S. (14 How.) 504, 14 L. Ed. 518; Railroad Co. v. Harris, 79 U. S. (12 Wall.) 65, 20 L. Ed. 354; 1 Cyc. 136.
It suffices to say, without further comment, that careful study of the record fails to disclose reversible error, and the' judgment will therefore be affirmed.