145 Ind. 314 | Ind. | 1895
— The appellee sued the appellant for the reasonable value of services, rendered by agreement, in effecting a sale of electrical machinery. Upon the trial the appellee, as a witness in his own behalf, was permitted, over the appellant’s objection, to testify that the appellant’s president had stated to him that the company “paid from ten to fifteen per cent, for that kind of work.” There was, upon the entire evidence of the appellee, a conflict as to whether the alleged statement Avas a part of the conversation constituting the employment, or in a. sub
“I said to Mr. Rorison, I have a party who is going into the electric light business, it is a pretty big thing, and I want to know whether your people would take hold of a thing of that kind. I gave him some idea of what the plant would be, and I told him that I knew the people were able to handle it if they would go into it. He said, ‘Yes, they were in for anything.’ Now 1 said, Mr. Rorison, if this thing is a success I want the usual commission, that is what I am after.’ He said, ‘All right.’ I went on and told him where the plant was,” etc.
Thus it will be' seen that the evidence tended to support a contract, not only for the performance of the service and the payment of “the usual commission,” but also specifying the rate of that commission as at “from ten to fifteen per cent.”
The appellant insists that the action, being for the quantum meruit, permitted no evidence of a contract as to the value of the services rendered.
The appellee’s contention is that the evidence was admissible to prove the knowledge of the witness as to the rate of commission paid for such services, and as qualifying him to testify as to the value of such services. If the evidence was not objectionable for the reason urged against it, we are not at liberty to hold its admission to have been erroneous, though the reason for its admission, given by the appellee, may be incorrect.
While the rule that one may plead the common count and recover, notwithstanding the evidence dis
In Scott v. Congdon, supra, it was held that evidence of an agreement that for the work done the plaintiff should receive a sum stated, was “clearly competent, as tending to show the value of the work and labor done.” Upon the theory of that holding it was certainly proper to admit the appellant’s statements, of the commissions usually paid by it, as evidence of the value of the appellee’s services for which, as he testified, he was to receive the “usual commission.” However, we think that the question of the admissibility of the evidence as a part of the contract is not presented. At the time the court passed upon the objection of the appellant the witness had testified that the conversation with reference to the usual commission paid by the company was subsequent to the conversation in which the employment was made. It was upon cross-examination that the witness stated the time as that of the making of the employment. No motion to strike out the evidence so objected to followed, and the court was not asked to pass upon the question in the light in which the cross-examination placed it. In our opinion, the evidence was not objectionable for the reasons pointed out to the trial court and repeated, in this court.
It is further complained that, while the appellee was a witness in his own behalf, he was permitted, over the objection and exception of the appellant, to testify as to his opinion of the value of his services in the matter of said sale. It was claimed by appellant’s
These cases do not include the long line of decisions in this State, holding that where mental capacity is in issue and, though involving a question of the high
In City of Indianapolis v. Huffer, supra, it was said: “The action of the court below in allowing witnesses, not experts, to give their opinion as to the capacity of the sewer is questioned. The rule is that any witness, not an expert, who knows the facts personally, may give an opinion in a matter requiring skill, stating also the facts upon which he bases that opinion.” The rule so stated has been quoted with approval in most of the great variety of cases we have cited.
In Bennett v. Meehan, supra, it was said that “It has long been the rule in this State, that a witness who is familiar with the facts, and who states them to the jury, may express an opinion, although he is not an ' expert, if the case is one in which it is proper to express an opinion.” Though never having engaged in a like service, the appellee was shown to be a man of extended business experience; that he was employed for this special service by the appellant, and performed the service for which he was so employed.
Another witness, called in behalf of the appellee, testified that for two years he had engaged in selling electric lighting apparatus for the establishment of electric lighting plants in cities and towns, and that he was acquainted with the value of services such as the appellee had'performed. Several of the questions .eliciting such testimony were answered over the objection and exception of the appellant, and, following
The third of the court’s charges to the jury was that if they should find from a preponderance of the evidence in favor of the plaintiff they should assess such reasonable compensation as they should determine, from a preponderance of the evidence, he should receive for the services performed. It is complained that the charge was not applicable to the evidence, that the complaint alleged a sale to Sutter, and the evidence showed a sale to another. The charge does not assume that the contingency claimed did not exist, but it directed the assessment of damages in the event of a finding for the plaintiff. The fourth charge was as follows: “If you find, from á fair preponderance of the evidence, that the defendant, Brainard Rorison, was agent of the defendant, the Jenny Elec
The fifth charge was as follows: “You are the exclusive judges of the credibility of the witnesses, and it is your duty to reconcile any conflict that may appear in the evidence, as far as may be in your power, upon the theory that each witness has sworn to the truth; when this cannot be done, you may consider the conduct of the witness upon the stand; the nature of the evidence given by them; how far they are corroborated or contradicted by other testimony; their interest, if any, in the cause; their relation to the parties; and such other facts appearing in the evidence as will, in your judgment, aid you in determining whom you will believe, and you may also, in considering whom you will or will not believe, take into account your experience and relations among men.
The objection to this charge is confined to the last direction thereof, that which we have italicized. By this, it is claimed the jurors were advised that it was proper for them to employ any of their particular experiences and relations among men nut of court, in determining the rights of the parties. It is argued that such a rule- would permit the disposition of a cause upon the whims of jurors, rather than upon the law and the evidence as they were learned in the trial.
Jurors should be, and as a rule are, selected because of their extensive experiences among men. The school of experience which men attend, in their varied 'relations among men, imparts a keenness of mental vision which enables them the more readily to see the motives and to judge of the selfish or unselfish interests of men. This education, be it much or little, is a part of the juror, and should not, if possible, be laid aside in passing upon the inducements, which
In our opinion there was no error in the charge.
Finally, it is insisted that the verdict was not sustained by the evidence. There was evidence which, if uncontradicted, would have supported the verdict. The weight and effect of the contradictions and the evidence upon conflicting theories of the case were questions for the jury, and are not subject to review.
The judgment is affirmed.