14 Utah 463 | Utah | 1897
This case has twice before been considered on appeal by this court. 10 Utah 210, 11 Utah 444. The facts are that a co-partnership firm of contractors, Taft & Kropf-ganz, under a contract with the defendant, Sadler, built a house for him, upon which was due, on or about January 14, 1891, the sum of $2,320.80, which on said day was assigned by a written order, executed by Kropfganz, to the plaintiff, McCornick, in consideration of an indebtedness of about the same amount due from said contractors on a bank account. The defendant was duly notified by plaintiff of the assignment. It was understood by plaintiff at the time of taking the assignment that there were some claims for material which were
The plaintiff succeeded only to the rights of Taft & Kropfganz. Plaintiff's counsel admit the general rule that declarations in disparagement of the title of the ■ declarant are admissible as original evidence, but claim that this rule applies to the title to the particular chattel or chose in action assigned. We do not see how this distinction can be claimed for this case. If it be true
Before offering in evidence the books of Mason & Co., containing the account with Taft & Kropfganz, and before attempting to show that this account did not contain a full list and account of all the material furnished by Mason & Co. for the Sadler house, and before showing that the contract price of the material was the same as the market value, defendant attempted to show by the architect, Kern, the market value of the lumber, lath, sash and weights, doors, nails, and glass that were used in the house. This testimony was rightly excluded by the court at that stage of the trial.
Objection is made by the defense to the court not permitting the witness Mason, of the firm of Mason & Co., to testify from bills made by his clerk at the end of each month from the books of the firm, of the material furnished Taft & Kropfganz for the Sadler house. The witness did not write fhe bills, did not claim the bills were anything more than copies of the books, had no independent recollection of the items of the bills, and neither the bills nor the books were at this time offered in evidence. The only thing offered was the testimony of the witness, based solely upon the bills, and not even upon his own memory refreshed from an examination of the bills. Besides, no such exceptions were taken to'rulings upon this testimony as can be relied on upon appeal. The account books of Mason & Co. with Taft & Kropfganz were subsequently produced, and admitted in evidence, after which defendant attempted to show that the books did not contain an account of all the material furnished by Mason & Co. In particular, a certain bill of glass, made out in the handwriting of the witness Mason, dated January 6, 1891, and sent to Taft & Kropfganz, for beveled
The defendant should have been permitted to show that no material furnished Taft & Kropfganz for the Sadler house was paid for as delivered, the theory of the plaintiff and the court being that, if material was furnished, and not charged on the books, the presumption was that the same was paid for. The books of Mason & Co. show that one single running account was kept by them with Taft & Kropfganz for material furnished for the building of several houses besides and including the Sadler house, and that marginal notations of the name of the owner of the house or the street number was the only
There are a great many other questions of minor importance raised by this appeal, which are not necessary to discuss in this opinion, as they are not likely to arise again upon a retrial of this case. It is evident from the matters herein considered, and from an examination of the entire record, that such competent and material evidence was excluded as necessitates a rehearing. The judgment and order of the trial court is therefore reversed, and set aside, and the case is remanded for a new trial.