Denson v. Acker

Nov 15, 1917

6 Div. 628.

Reporters:: , ,
Before:: Sayre

SAYRE, J.

Appellee sued appellant for the price or value of repairs done upon appellant’s house. Defendant denied that there had been any agreement as to the price of the work to be done, and contended that he had paid, in part and in other part tendered to plaintiff the full value of the repairs. A jury found for plaintiff, assessing his damages, and frоm the judgment on the verdict defendant has appealed.

[1] We find only one exception noted in the matter to which defendant’s first, second, and third assignments of error refer. The precise point of the single exception shown by that part of the record to which these assignments refer is not entirely clear. In a general way, however, it appears that defendant intended tо except to the use the plaintiff as a witness was permitted to make of a paper writing which, the witness said, contained a substantial, though not exact, copy of the contract under which plaintiff claimed to have done the work in dispute, or, to be a little more precise, a copy of plaintiff’s offer describing the work he was to do and the price for which it was tо be done. ■Haintiff’s testimony was that he made this offer, and that defendant had accepted it. The proper predicate for secondary ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍evidence of the contents of the alleged offer was laid. The evidence for plaintiff went to show that the paper writing or memorandum in question had been made by plaintiff at or about the same time as the offer in writing which, according to plaintiff’s testimony, had been submitted to and accepted by defendant, and that it was substantially the same as the offer. Upon this showing the court allowed, the witness to refresh his recollection from the paper writing which he had before him, and so to state the contents of the alleged offer which, as plaintiff contended, formed the basis of the contract between him and dеfendant. While it may be doubted that defendant reserved any exception to this ruling of the court, we think there could, in any event, have been no error in the court’s ruling.

[2] The showing upon the face of the record is that defendant made no objection to the question put to plaintiff as a witness, viz.: “Did you fulfill your contract as you agreed to do it?” until the question had been asked and answered, nоr was there any motion to exclude the answer as there should havé been if, as appellant, defendant, suggests, the question was answered before he had an opportunity to object. Nоthing- of that appears in the bill of exceptions. Furthermore — and ordinarily this would be considered conclusive against the contention for error at this point — there was no exceptiоn, nor does the bill of exceptions show a ruling to which exception might have been reserved.

[3] Plaintiff, in order to get before the jury evidence of the alleged fact that he had done a small item of work not included in the contract to which he had deposed, was allowed to answer the question: “Did you do any extra work outside of the specified contract you had with Mr. Densоn?” The objection was, specifically, that there was no claim for extra work, and, generally, that the question ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍called for irrelevant, illegal, incompetent, and immaterial testimony. Our best judgment is that there was in this no reversible error. The fact that the complaint contained the common count for work and labor done answered the specific objection, while the genеral objection failed to point out to the court the fault, viz. that the question assumed the existence of an express contract which *302 defendant denied — conceding for the argument thаt the question was faulty in this respect as the appellant now contends. The objection now taken is highly technical, was not suggested by the objections actually interposed on the trial, and the court below cannot be put in error for that it did not take the point; and what we have here said applies, of course, to the action of the court in overruling a motion to exclude the answer; said motion being based on grounds identical with those stated against the question.

[4] The seventh assignment of error may be sufficiently answered by the suggestion that the rule which says that the trial court will not be reversed for allowing a leading question is of long standing and quite familiar. 4 Mayf. Dig. p. 1190, § 68d. The foregoing statement of the law and the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍authority we have cited will also suffice to answer the allegation of the error in the court’s overruling the motion to exclude the answer to the same question. At the same time they suffice to answer the ninth and tenth assignments of error, which are like unto the sеventh and eighth.

[5, 6] Plaintiff’s witness Barbour testified that he had done some plumbing for plaintiff; the same being a part of the repair work plaintiff was doing for defendant. Although it appeared that the witness did not do the work with his own hands, he inspected the work when done, and made a memorandum bill for the same. The court allowed the witness to refresh his recollection by consulting the bill, and abstractly speaking this was not error. We may dwell further on this point by saying that no harm can be attributed to the ruling in any event, for the reason that it does not appear that the witness, having refreshed his recollection, testified thereafter to anything shown by the bill. He did afterwards say that he was sure the bill was reasonable, and defendant excepted to this statement going in evidence; but, if any part of-this statemеnt was drawn from the memorandum or bill, then what was done came to just this: The witness was allowed to testify that the price shown on the bill, whatever that was, was a reasonable price for the work done. The witness knew the work, and we are unable to find error in the ruling.

[7-10] The only objection taken to the ruling shown by the thirteenth assignment of error was that the question should have been asked on the first direct examination of the witness, and was “incompetent, immaterial, irrelevant, and illegal.”. The witness was a contractor, and showed himself acquainted with prices of the sort in controversy. His opiniоn as to the worth ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍or value of the work in question — and that, we understand from the record, is the essence and effect of what he testified to — was not open to the general objection, while, as for the order in which the question was asked — this furnishing the matter of the specific objection — that was within the discretion of the court. Southern Industrial Institute v. Hellier, 142 Ala. 086, 39 South. 163; Chandler Bros. v. Higgins, 156 Ala. 511, 47 South. 284; B. R. L. & P. Co. v. Saxon, 179 Ala. 136, 59 South. 584. Nor did the court err in overruling the motion tо exclude the answer. Responding to the argument here made on this assignment of érror— though no such argument was intimated by the objection stated in the court below — the witness, as an expert, was answering a hypothetical question which with reasonable accuracy stated the facts according to plaintiff‘s contention which had support elsewhere in the evidence, and it was not necessary that it should be made to appear that the witness was speaking from a knowledge of what was done on the house in question. However, his answer showed that witness had examined thе job, defendant’s house, and spoke really out of the knowledge thus acquired rather than in strict answer to the hypothesis of the question, and thus removed the possibility, suggested here in the brief, that he sрoke of some house or job not involved in this suit.

[11] In view of defendant’s contention that he had no express contract with plaintiff in regard to the work done, the witness Mann, a contractor of lоng experience and acquainted with values in his line in the neighborhood where the work was done, was competent to give ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍his opinion as to the reasonable value of the work and mаterial contributed by plaintiff to the repair of defendant’s house, and this, in substance, is what the witness was allowed to testify. This disposes of the fifteenth and sixteenth assignments of error.

[12] There was no error in refusing to defendant the special instruction set out in the seventeenth assignment of error. Defendant denied a contract. Plaintiff sought to recover on the common counts in the event the jury should find there was no contract. The evidence was in conflict, but the jury may have inferred that defendant had accepted plaintiff’s work and material, even though there was a contract, and even though there was one coat of paint where the contract called for two — that the real difference between the parties all along had been in respеct only to the reasonable value of the work done and material furnished by plaintiff. In fact, defendant had made a payment and had tendered what he considered to be the balanсe due on a fair estimate qf the value of plaintiff’s work and material. In this state of the case, at best for defendant, it was for the jury to say whether defendant had voluntarily accepted plaintiff’s work and material, though there may have been an express contract to which the work did not in all things correspond, and so to say that defendant should pay for what was done at its fair market value. Hartsell v. Turner, 196 Ala. 299, 71 South. 658.

The only remaining question relates to alleged error in overruling defendant’s motion *303 for a new trial. It is evident that the jury-found with plaintiff in all his material contentions. We have exаmined the evidence with due care and are unable to say that the jury were in any respect clearly wrong. In fact, it is clear that all issues of fact were morally and legally proper to be decided by the jury. Cobb v. Malone, 92 Ala. 630, 9 South. 738.

Having thus fully examined all the assignments of error and the argument in their support, we have found no error. The judgment must be affirmed.

Affirmed.

ANDERSON, C. J., and McCLELLAN and GARDNER, JJ., concur.