Gonzales College v. McHugh

21 Tex. 256 | Tex. | 1858

Roberts, J.

The principal questions arise in this case upon the rulings of the Court in the exclusion of appellants’ testimony, tending to prove what was the value of the college building at the time McHugh quit work on it, and what was the quality of the work done by him ?

One of • the grounds of objection to this testimony, taken by the appellee, was that the witnesses were not stone-masons, and were therefore not compent witnesses to speak of the value or quality of such work.

We do not think this objection well taken; because a man from his experience and observation may be a very good judge of such subjects without being a practical mechanic. So a, man may testify as to the value of cotton without being a merchant or farmer. Want of familiarity with the subject is an objection to the weight, rather than to the admissibility, of the testimony.

It is contended that the evidence was properly excluded, because the value of the unfinished building was not the true criterion, as to the amount that McHugh was entitled to recover, but the contract price, less what it would take to finish the building, was the true criterion.

Suppose that the work had been done so badly that the house never could be finished according 'to contract, then of course the rule contended for could not obtain. Suppose also a very inconsiderable portion of the whole work was done.( then the rule suggested would be a very indirect mode of arriving at the rights of the party. If, however, the work contracted to be done was considerably advanced towards a completion, and, there was no complaint that the work was not in accordance with the contract, so far as it was completed, then the rule would be correct, as being the most direct way of estimating the value of the plaintiff's services, &c. (Hilliard v. Crabtree's Adm’r, 11 Tex. R. 264.) That the work was done in the time, and in a workmanlike manner, as stipulated for in the contract, cannot be plausibly contended for. The plaintiff, therefore, cannot rely on the contract as made in the writing. If he relies on the implied promise, from his labor and materials being received and used, the rule would be that he should recover so much as they were reasonably worth. (O'Conner v. Van Homme, Dallam, 429 ; Story on Con. Sec. 15, 927.)

Again, if the work was received as it progressed, and certain installments paid from time to time on the said work, still as the work was stipulated to be done for a price in gross, and not by parcels, it was proper to estimate the value of what was done in order to determine whether appellants had overpaid for the work actually finished. (Story on Con. Sec. 19.) In any point of view that the case can reasonably he regarded the evidence was admissible, and the Court erred in excluding it.

There are numerous questions presented in the record, which, it is presumed, it is hardly necessary to refer to, as upon another trial they may not arise, and if they do, may be presented in a shape more favorable to judicial investigation.

Judgment reversed and cause remanded.

Reversed and remanded.