1 Neb. 346 | Neb. | 1871
On the trial of this cause in the District Court several exceptions were taken to the allowance and rejection of testimony, as well as to the charge of the judge; the more important of which will be noticed.
The action was originally begun by Arba Holmes as sole plaintiff. Subsequently, by an order of the court, Gould and Powell, his former partners, were joined with him. Exception was taken to the reading of certain depositions taken in the cause prior to this amendment as to parties. The testimony ta,ken in the depositions related to the value, in Chicago, of certain burr millstones, and was alike applicable to the case after, as well as before the amendment, and there is no substantial reason for excluding the deposition. — Vincent v. Conklin, 1 E. D. Smith, 203.
By the terms of the written contracts under which the plaintiffs below were to furnish the machinery and place the same in the mill building of the defendants, the defendants v;ere to have the building completed,- with floors and
Further along in the course of the trial the defendant’s counsel asked of a witness : “ What would have been the average profit of that mill, fully completed according to contract, from the first day of September to the time when the plaintiffs turned the same over to the defendants ?” This was objected to “ as incompetent on the ground that it was immaterial under the written contract offered in evidence.” With the written contract requiring Holmes,
Again, a witness is asked by the defendant’s counsel, “ How much did the defendants pay for hauling machinery from the mill back to the foundry to be finished and completed, and for hauling the same from the foundry to the mill the second time ?” The question was asked for the purpose of establishing a claim for extra hauling done by the defendants in taking- a shaft back to the foundry to be refitted. Without stopping to inquire whether, under the plain terms of the contract, wherein they obligate themselves “ to do or have done all the hauling of said machinery as is necessary for the completion of the works,” they could make any charge for extra hauling, it is enough that proof of what they may have paid for such hauling is not evidence of its value. They could, m any event, claim only what such labor was worth. What was paid might be more or less. The court was right in sustaining the objection.
The same may be remarked in reference to the ruling upon the question as to “what was paid” for extra board of hands employed in replacing imperfect machinery.
I come next to consider the exceptions taken to the charge of the court. The first is to that which instructs the jury: “That the rule of law in the assessment of damages in such cases as the present one, is the difference between the value of the machinery actually put in by the contractors, and the actual cost of the new machinery put in place of it.” Here the court erred. No question was
Without noticing other points raised, the judgment must be reversed and a new trial had.
Reversed and remanded.