Currier v. Boston & Maine Railroad

| N.H. | Jan 15, 1857

Sawyer, J.

The declarations of the plaintiff, made at the time of his commencing work at the sand hill, to the effect that the line had been changed from its original location to that point, were inadmissible as evidence in his favor, to prove such change. That the declarations of a party, giving character to and qualifying his acts, and deriving a credit from them, are admissible in favor of the party making them, as part of the res gestee, when the acts themselves are material to the issue, is a familiar rule of evidence; but it is applicable only when the res of which the declarations form a part — the acts which they tend to qualify and explain — are evidence in his favor, tending to prove the matter in issue. Here the fact qualified by the declarations is that the plaintiff worked at the sand hill, and this was a fact in no way material to the question at issue. That the fact was material, as being the foundation of the plaintiff’s claim, constituting the service for which he seeks to recover compensation in this action, is quite apparent. But it is not material in the sense that as evidence it would tend to establish the point in controversy in favor of one party or the other.

The question at issue was, whether there had been a change in the location of the line of the road. The controversy was upon tha.t point. The act of the plaintiff, in doing the work at the sand hill, was equally consistent with the conflicting positions taken by the parties — by the plaintiff, that the grading was done upon a new line, substituted for the one originally established ; and by the defendants, that it was upon the line as originally established. No inference could be drawn either way from the fact that the plaintiff worked there. His work at the sand hill would have been performed alike, whether in doing that work he was grading the original line or a new one substituted for it. The acts of the plaintiff in this particular being no evidence upon the point in controversy, the accompanying declarations were not evidence, and were, therefore, rightfully excluded.

. The next question in the case arises upon the exception of the plaintiff to the ruling of the court in excluding the testimony of the witness as to statements made by the chief engineer of the company defendants, relative to the manner in which the work was to be done, during a negotiation for letting the job to the witness. It is not suggested by the case that any controversy existed between the parties in relation to the meaning of the contract, other than what was the particular subject matter to which it referred. Was it the road, as graded, ending in the deep pit in the swamp, station 100, spoken of in the contract, being there ; or was it the other line, running to the flag-staff in the plain, as station 100, and for which the line as graded was substituted ? When, therefore, it is stated in the case that this testimony was offered for the purpose of showing how the contract was afterwards made with the plaintiff, we understand that it was offered for the purpose of showing which line was contemplated and intended by the parties in the written contract. The offer was to prove by the witness “ how the chief engineer said the road was to be built.” Assuming that the statements of the engineer are to be treated as the declarations of the company, and that they were made under such circumstances as to render them competent as evidence, it was an offer to prove the declarations as to the manner in which the road was to be. built, for the purpose of showing where it was to be built. It may readily be conceived that under some circumstances such declarations might have a very material bearing upon the question at issue, but no circumstances are stated in the case from which it thus appears. It.cannot be said that a statement of how, in what particular manner, the work of grading the road was to be done would necessarily tend to show whether the grading was to be done on one line or another. There is nothing, therefore, in the case to show that the evidence offered would have borne upon the question at issue, and it must be considered as properly excluded.

The objection to the 28th interrogatory in the deposition of Bacon, that it is leading, does not seem to be well founded. The first branch of the interrogatory is not in the alternative form, “whether or not,” but it is not of-such character as to lead the witness to any proposition embodied in it as containing the desired answer. Besides, it is merely introductory, and as such, entirely immaterial, unless followed by the other branch of the interrogatory; and such questions may be leading. It is also a satisfactory answer to the objection, if it exist, that the question has become immaterial by the finding of the jury. The question could have no relevancy to any point in the case, except the amount to be recovered upon the quantum meruit, in case the plaintiff should maintain his claim upon that ground. Under the instructions given, the jury have found that the plaintiff had no case upon that ground, and if the instructions were correct the whole inquiry is immaterial, and the verdict is not to be disturbed, even if it were apparent that the witness was led to an answer that would have been material upon that point.

The objection to the last clause of the answer to the 27th interrogatory, that it is incompetent, is not well taken. One question raised at the trial was, whether the plaintiff was entitled to recover for the fill between station 100 and the sand hill, independent of the contract; and if it should be found that there had been no change of the line. The whole of the answer to this interrogatory may have a bearing upon that question, and no part of it more so than the last clause, to which the exception is taken. It may hare a tendency to show, either that the plaintiff understood he was performing the work under his contract, or that he had received compensation for it as' extra work.

The objection has been urged in the argument, that it is incompetent, on the ground that it was offered to prove the contents of a writing. The case does not find that the claim was presented ■ in writing. On the contrary, it is to be understood that it was merely a claim made orally. The witness says, “ I ■cannot recollect his,” (the plaintiff’s,) “precise words, but the above is the substance of his statements.” Besides, it is not stated in the ease that this was the ground of the objection taken at the trial. If not then stated as the ground of the objection, it cannot now be urged. If this had been suggested at the trial as the point of objection, it is to be presumed it would have been obviated by the production of the, writing, or a proper explanation of its absence.

The exception to the 28th interrogatory, that it calls for the opinion of the witness as an expert, is not well founded. The subject to which it relates is not a matter of science, art or skill, but one in relation to which all the information that the interrogatory is calculated to elicit may be attained by common observation and experience. The interrogatory does not, therefore, ask for an opinion, but seeks for facts within the knowledge of the witness, and of which the knowledge may be obtained by common observation.

We think all the exceptions to the deposition of Bacon were properly overruled.

The paper containing the final estimates of the work done by the plaintiff, as made by the engineer, was proved by his testimony to be correct. It was competent to go to the jury, in connection with his testimony, as a memorandum made by him about the time of the transaction, and which he knew to be correct. Haven v. Wendell, 11 N. H. 112. The contract contemplates monthly estimates to be made out by the company’s engineer, of the amount of work done, for the purpose of limiting the monthly payments, and expressly provides that when the work is completed and accepted by the engineer, the'balance shall be paid ; not, however, upon an estimate made by the chief engineer, or any other person designated as umpire, and thus conclusive upon the plaintiff, but upon the actual amount of work done. The question, what was the amount of that work, would be open to him, whatever might be exhibited by the estimates, and whether they were made by the chief or some subordinate engineer. The case does not state what instructions were given to the jury in reference to the character of the memorandum as evidence. No question, therefore, arises upon that point. If the question was at all material, it was competent for the defendant to show what the amount of work was, by the resident engineer or any other person having knowledge of the fact; and the paper containing estimates by the witness, which he knew to be correct, made at the time of the transaction, was evidence, in connection with his testimony, both of the fact that such estimates were made, and of their correctness. It is not, however, upon the ground that the plaintiff had knowledge of and assented to them. No presumption of that kind can arise from the fact that the estimates are found upon the back of the receipt, signed by the plaintiff. With the contents of a paper signed by a party, and all that appears upon its face, he must be presumed to be acquainted at the time of signing; but there is no ground for holding him chargeable with knowledge of what appears upon the other side of the paper, and to which there is no reference in the instrument to which he affixes his signature ; nor is it to be presumed, in the absence of evidence, that the memorandum was upon the paper when the receipt was signed. It is sufficient in this case that the paper was competent to go to the jury, whatever may have been the ground upon which it was ruled in by the court.

An exception is taken to the instructions of the court to the jury, that unless they believed there had been a change of the line,-the plaintiff was not entitled to recover beyond the contract price for the work done in the fill between station 100 and the sand hill. The case finds that in order to make the fill on that portion of the line up to station 100 included in the contract, it was necessary to fill in beyond station 100 to the sand hill, and it must be understood from the case that the instructions relate to the work done in this necessary fill. This, then, must be considered as incident to and part of the plaintiff’s contract, and for this work he was to receive the stipulated price per cubic yard, measured in excavation. Whatever was necessary to be done beyond the limits of that portion of the road included within the contract, as the portion to be graded by the plaintiff in order to execute the grading specified, is as fully a part of his contract as though it were particularly specified. To grade the road implies the removal of earth from those places where cuts are to be made, and the filling in ^¡jere embankments are required ; and if, in order to make the embankments, material must be brought from any point beyond the line of the road to be graded, the work necessary to accomplish this is stipulated to be done as part of the contract, though not particularly specified. The instructions were correct, and all the exceptions being overruled, there must be

Judgment on the verdict.