50 Mich. 37 | Mich. | 1883
Tbe respondents represent tlie estate of Abrabam Dickerson, deceased. The subject-matter of the proceeding is a claim against that estate for the services of the claimant, who is a son of the deceased.
If the facts were as the jury appeal* to have found them, the claimant was clearly entitled to recover the value of his services. Van Fleet v. Van Fleet, ante, p. 1. Some technical objections are taken, however, that require notice.
The court permitted the claimant to prove what the value of the land was.' This was perhaps proper under the circumstances, as the agreement relied upon was disputed, and the value might have some bearing upon the probability of the agreement having been made.
The defense requested that a great number of special questions be put to the jury, for the purpose of determining the grounds of the recovery if there should be one. In the brief they are all summed up under three heads: 1. What was the value of the clothing furnished by the claimant for his father and mother? 2. What was the value of the provisions? 3. What was the value of the labor performed? Had these three questions been distinctly propounded it might have been proper for the court in its discretion to submit them to the jury, but instead of that, no less than forty-one in all were proposed, the answer to no one of which would have been conclu
The case appears to have been twice tried in the circuit court. On the second trial the wife of the claimant gave evidence tending to prove the contract relied upon. The defense, on an assumption that the witness had never given that evidence before,^which they claimed was established, — requested the judge to call the attention of the jury to the fact. The judge, alluding to the fact, said: “ I think she said that certain questions were not asked her, and therefore the proofs were not brought out and added: “ I don’t think it has any bearing upon her credibility, for of course if a person is not asked a question, they can not answer it.”
The fact that the witness did not testify on the point before would be proper subject of comment to the jury, but would not be matter of impeachment. The failure to put questions to her on that subject might or might not be a suspicious fact, according to the circumstances. A party may sometimes very properly abstain from making his wife a witness to facts which he supposes he may sufficiently prove by others, $,nd most persons, perhaps, would think it desirable to avoid as much as possible making the case depend upon the evidence of members of their immediate family.
We find no error in the record and the allowance must be affirmed with costs, and certified to the circuit and probate courts.