75 W. Va. 109 | W. Va. | 1914
Elizabeth Deskins obtained this writ of error to a judgment rendered against her by the circuit court of Mingo county in favor of W. B. Elswick for $3,023.53, in an action of assumpsit, for material furnished and labor performed in and upon her opera house, in the town of Williamson, and for money pai¿i and advanced for her use.
Plaintiff had .originally contracted in writing to build the house according to certain plans and specifications for $11,955, but claims that the action is to recover for extra material and labor not contemplated by the original contract and rendered necessary because of certain changes and alterations in the plans, made at the special instance and request of defendant, except the opera chairs or seats and the labor of setting them up, and as to them he claims he was released from his original contract by a subsequent one. Whether he was in fact so released depends upon the proper construction
Plaintiff’s bill of particulars includes the following charges: opera house chairs $1,300, freight on same $95.45 unloading car of chairs $5.75, and sums paid various laborers in setting them up amounting to $222.15, the whole aggregating $1,623.35. Those charges go to make up plaintiff’s judgment. They are improper and should not have been allowed.
It is urged that the court erred in permitting plaintiff to prove his account by oral testimony, without introducing the written contract which it is insisted was the best evidence of plaintiff’s undertaking and, incidentally, the best evidence of whether the items charged as extras were in fact such. 2 Jones’ Com. on Evidence, secs. 199 and 201; 1 Taylor on Evidence, sec. 402; Buxton v. Cornish, 12 M & W. 425; Vincent v. Cole, 7 B. & C. 400; and Edie v. Kingsford, 139 Eng. Rep. 311. But we do not think defendant is in a position to complain of the introduction of parol evidence. She failed to object at the time the testimony was given, and later moved to exclude it. But the motion was limited to the testimony respecting the charges for labor in the bill of particulars, and was apparently made on the ground that plaintiff kept the account of the time as it was reported to him by his timekeeper, as the work progressed, and his testimony was therefore hearsay evidence. The testimony in this respect was admissible, according to W. Va. Architects & Builders v. Stewart, 68 W. Va. 506. It was not a violation of the rule against hearsay evidence. Assuming, but not deciding, that it was improper to allow plaintiff to prove his account for extras by oral testimony, without first producing the 'written contract or properly accounting for his failure to do so, defendant can not now be heard to complain,
Moreover, defendant had the right to introduce the written contract for the purpose of contradicting plaintiff’s testimony. It may, or may not, have shown that the items charged in his bill of particulars were’ parts of his original undertaking. But defendant did not testify and did not offer to introduce the contract. Plaintiff says he thinks the original -was burned up when his shop burned. But it appears to have been previously recorded in the clerk’s office of the county court, pursuant to section 5, ch. 75, serial section 3846, Code 1913. It also appears from the testimony of B. B. Goings that a certified copy of it was in the hands of defendant’s counsel at the trial, although not put in evidence. Did counsel decline to introduce it because they thought it would be detrimental to their client’s case? We do not know. Sec. 5, ch. 130, serial section 4860, Code 1913, authorizes its use as evidence, in lieu of the original. The certified copy was therefore primary evidence, and either party had the right to make use of it in the trial’ of the case.
The first item of plaintiff’s bill of particulars bears date September 11, 1908, and the last one on October 12, 1908. This must be erroneous as to the year, because plaintiff expressly states in his testimony that he furnished no material or labor for which Mrs. Deskins had not already paid him, after he filed his mechanic’s lien, which was in the latter
It is assigned as error that the conrt refused to allow defendant to introduce as evidence the record in the mechanic’s lien suit brought by plaintiff against Mrs. Deskins and others. It does not appear for what purpose this documentary evidence was offered, and, therefore, we can not say the court erred in refusing to admit it. It is made a part of the record in this case by bill of exceptions, and from the allegations of Elswick’s bill and his account therewith filed it appears that he then claimed a large balance due him on the original contract and for extra material and labor rendered necessary on account of changes in the original plan and specification made at the request of defendant. These extras were itemized and they do not appear to be identical with those for which this suit is brought. The record was admissible for the purpose of contradicting plaintiff’s testimony. The extras now sued for, having been performed and furnished at the time that suit was brought, ought to have been included therein. If they were not, it would be evidence tending to prove that the items forming the basis of the present action, except the chairs and labor offsetting them up, was an afterthought of plaintiff’s. But, as before stated, it does not appear for what purpose the record was offered, and it may have been offered for an improper purpose. However, the judgment will have to be reversed for the error in allowing a recovery for the opera chairs and the labor of setting them up, and when the case goes back for a new trial the mistake, if any was made, in refusing to admit the record evidence can be corrected. Defendant’s motion for a new trial should have prevailed.
The judgment is reversed, the verdict set aside and the ease remanded for a new trial.
Reversed and Remanded.