19 Mich. 163 | Mich. | 1869
Had the defendant below objected to the writing, and the evidence of BroAvn in connection therewith, — offered for the purpose of showing that the amount and dimensions of the wall used by the defendant had been agreed upon by the parties, — on the ground that the paper was not signed by the defendant, and did not purport to speak for him; that it could only be used by the witness as a memorandum, or that it showed upon its face that it was merely the claim of the plaintiff's, presented or to be presented to the contemplated arbitrators, and was therefore repugnant to the offer, which was to show the agreement as an independent fact, etc., “without reference to any adjustment or settlement offered by arbitrators or otherwise,” a very different question- would have been presented from that arising upon this record. No objection was made to the offered evidence, upon any such ground. The Objection was based expressly upon the single and specific ground “that such statement or proposition” (meaning, as we understand the objection, the agreement or admission of the defendant in reference to measurement, as testified to by plaintiff Brown), “ was, as appears by the testimony of said witness, made for the purpose of a settlement of controversies then existing between the said parties, and which had since become the subject of this suit.”
This being the sole ground of the objection, all others which might have been urged, must be considered as waived.
It was not claimed that any valid agreement was made between the parties to submit their differences to arbitration. But the plaintiffs were allowed, against defendant’s objection, to show .the abstract fact that the arbitrators verbally agreed upon, did make a finding as to the price, without stating the amount found by them. This fact was wholly irrelevant and the Court ought to haye excluded it. But we are unable to discover how the proof of this isolated fact, having no connection with the controversy, nor calculated in any way to affect the minds of the jury, could possibly have operated to the prejudice of the defendant. Indeed, we think it quite evident that he could not have been injured by it, and that the judgment should not therefore be reversed on this ground.
Nor could the defendant have been prejudiced by the evidence introduced by the plaintiffs, under the claim of rebutting evidence, showing that the charge of three dollars for the use of a pump, embraced in the defendant’s claim
The admission of the evidence on the part of the plaintiffs, showing that, at the time of the delivery of the stone and the water lime, by the defendant, he stated that he would turn out the stone in payment for his half of the stone wall, presents a question of less obvious solution. Plaintiff Brown in his testimony in chief, had testified that the contract was to pay for so much of the wall as the defendant should use, and also, to the admission by the defendant of the measurement claimed by the plaintiffs, of the wall as used by the defendant. The defendant had testified that by the original contract he was to pay only for half the cost of so much of the wall as he should use above the ground; but that he afterward took some dirt out of the cellar of his building, and then agreed further to pay the plaintiffs, one-half the cost of all the wall he should use below the first floor of his building. To rebut this evidence of the defendant, plaintiff Brown was recalled and testified that but one contract wras made, and that the terms were not as stated by the defendant.
The defendant offered to prove that after the commencement of the suit he tendered to the plaintiffs the sum of one hundred and eighty-five dollars as damages and costs of suit then incurred by the plaintiffs.
This was objected to by the plaintiffs and excluded by the Court, on the ground that the suit was brought for the recovery of damages for a breach of contract, and not for a sum certain or which might be reduced to a certainty by calculation.
Had there been any error in any of the other rulings of the Court for which a new trial should be granted, it would be proper to consider this question of tender which might again arise upon such new trial. But as we have