5 Wyo. 148 | Wyo. | 1894
On October 27, 1892, the parties entered into a contract in writing, by the terms of which defendants in error were, at a specified price, to “have the work of delivering all coal sold and handled in the City of Laramie, State of Wyoming,” by plaintiff in error, “excepting such coal as is hauled by customers or under their direction, for the term of two years from November 1st, 1892.”
The gravamen of the complaint is that on November 9th, 1892, plaintiff in error, “in violation of its duties under said contract and in violation of the terms thereof, refused longer to employ or to permit plaintiffs further to comply with and to perform their obligation and duties under said contract, although plaintiffs have been willing and able at all times
The defense is, in substance, that defendants in error were not fulfilling the requirements of the contract themselves, and did not, as required by the contract, “perform the delivery of the coal referred to in said contract in a prompt or skillful or competent or workmanlike manner.”
There was also an attempt by plaintiff in error to prove at the trial that there was no profit in hauling and delivering coal at the price specified in this contract and consequently no damage to defendants in error resulting from their discharge from the employment.
The evidence upon this point was conflicting. As bearing upon this question the deposition of Edward P. Kelley was offered in evidence and was excluded because it was not signed by the witness. This objection was first made at the trial. It seems clear that this is an objection which to be available under our statute must be made before trial. Section 2633 of the Eevised Statutes reads as follows: “No exception other than for incompetency or irrelevancy shall be regarded unless made and filed before the commencement of the trial.” The section immediately preceding provides that “Exceptions to depositions shall be in writing, shall specify the grounds of objection, and shall be filed with the papers in the case.”
It does not appear from this record whether the exception to this deposition was made in writing and filed or not. It does appear that the objection was not made until after the trial was commenced. The objection that the deposition is not signed is not an objection for incompetency or irrelevancy. If the witness were incompetent, or if his testimony were incompetent or irrelevant, the objection would lie and the testimony would be excluded if the witness were produced in court. Neither incompetency nor irrelevancy depend upon the form of the deposition nor upon a compliance with the statutory directions for taking depositions. The testimony having been regularly given under the sanction of an oath does not lose the character of a deposition because the witness, failed to subscribe it. See Moberly v. Harnit, 1 A. R. Mar
Defendant in error cites Simpson v. Carleton, 1 Allen (Mass.), 109; Simpson v. Dix, 131 Mass., 185; and Johnson v. Perry, 54 Vt., 259. These cases do not seem to have arisen under a statute like ours.
Another error assigned which may be serious and prejudicial is the admission in evidence of certain conversation of one Blackburn with one of the defendants. Bláckburn was subsequently managing agent of the company which is plaintiff in error. But it is claimed that this conversation was had before he became such agent, and even before the company was organized. If this be true it is difficult to see on what principle evidence of this conversation could be admitted.
The judgment is reversed and the cause remanded for a new trial.