McMillan v. School District No. 2

200 Mich. 280 | Mich. | 1918

Bbooke, J.

(after stating the facts). In this court the defendant reviews said judgment under 35 assignments of error which in our opinion do not require individual discussion.

• The first 8, the 12th and 13th assignments refer to the action of the court in permitting the bondsmen of the contractor to intervene and to the proceedings in court following said intervention. Section 11, chap. 12 of the judicature act (Cummins & Beecher, § 485, 3 Comp. Laws 1915, § 12362), is as follows:

“In an action either at law, or in equity, any one claiming an interest in the litigation may, at any time, be permitted to assert his right by intervention, but the intervention shall be in subordination to, and in recognition of, the propriety of the main proceeding.”

Section 2 of the enacting clause of the act provides:

“This act is hereby declared to be remedial in character, and as such shall be liberally construed to effectuate the intents and purposes thereof.” Act No. 314, Pub. Acts 1915.”

This provision of the judicature act has been construed by this court in Weatherby v. Kent Circuit Judge, 194 Mich. 46.

It cannot be doubted that the bondsmen had a direct financial interest in the outcome of the litigation and this is true whether in the bankruptcy court the whole sum recovered by the trustee should be held to be the property of the bondsmen, by right of subrogation or that they were entitled to share in the distribution of the fund so created the same as any ordinary creditor. There was no error in permitting the intervention of which complaint is made.

Assignments 9, 10, and 11 are based upon the action of the court in admitting as. exhibits certain certificates made by the architect and by the building committee. It appears to us that these exhibits were properly admitted. Their value as evidence was for the jury under the testimony and proper instructions from the court.

Assignments of error 14-24 are based upon the admission or exclusion of testimony. We find no reversible error therein.

Assignment 20 refers to the testimony of the witness, VanZaal. In its principal case defendant had offered much testimony tending to show the defective character of the construction, but had introduced no evidence tending to show the cost of remedying the alleged defects with the exception of fixing the cost of renewing the basement floor- which was placed at $228. Plaintiff thereupon swore many witnesses, including the three members of the building committee, who testified that the structure was completed in accordance with the plans and specifications. After both parties had' rested defendant put upon the stand the witness, Van Zaal, who was questioned by defendant’s counsel as to the cost of repointing the brick work, which he first placed at from $225 to $250. Later, it appearing that this estimate was intended to cover the entire building, and that he had made no examination of the walls higher than he could reach while standing on the ground, he was permitted to testify that- to remedy such of the walls as he had personally examined would cost from $30 to $35. He fixed the cost of putting a tile drain all around the building outside the footings at $50, and the cost of repairing or replacing alleged defective work on the black boards at $15.

All this testimony was admitted over the objection of plaintiff’s counsel as not being proper rebuttal and because the items being testified to were not set forth in any bill of particulars and took the plaintiff by surprise and would require the bringing in of testimony on the part of plaintiff. This testimony was finally, on motion of plaintiff’s counsel, stricken out by the court. In the discretion of the court this testimony might very well have been received although strictly out of order. We are unable to find reversible error in the action of the court in this respect.

Several assignments of error are based upon the charge of the court! This charge is quite lengthy and presents the claims of the contending parties fairly, and, when considered in its entirety, preserves, we think, the rights of the defendant. In this connection it should be said that all requests preferred by the defendant were given to the jury. They were told that they might find for the plaintiff for the full amount of the claim; that they might find for the plaintiff for a lesser sum than for the full amount of the claim; that they might find a verdict of no cause of action or that they might find for the defendant if they concluded that the defects in the building were greater than the amount of plaintiff’s claim. In bringing in a verdict for the plaintiff for $385.76 the jury actually allowed defendant on account of the defects, $295.60. Assuming that they allowed the entire sum of $228 for renewing the basement floor, they allowed $67.60 further for other defects, or about a quarter of the entire sum claimed for defective workmanship, even if the testimony of Van Zaal had been considered.

After verdict, a motion for new trial was made based upon newly-discovered evidence. This claim was supported by the affidavits of the three members of the building committee who swore that after the trial they had made a further examination of the building and had become convinced that their testimony given upon the trial was wrong and that they had been deceived during the progress of the work by the contractor and architect. The learned circuit judge in disposing of this motion said with reference to this evidence :

“This to my mind is not newly-discovered evidence, and owing to the fact that it will necessarily be a contradiction of their former testimony it cannot be of any great weight or use in any event.”

Of the claim that the verdict was against the weight of the evidence he said:

“As to the ground that the verdict is against the clear weight of the evidence, it is the opinion of the court that the case having been properly submitted to the jury, and their finding a verdict for the plaintiff for about one-half of the amount claimed, that this verdict should not be disturbed.”

After a careful examination of this record and the assignments of error we must agree with the learned circuit judge.

The judgment is affirmed.

Bird, Moore, Steere, Fellows, and Stone, JJ., concurred. Ostrander, C. J., and Kuhn, J., did not sit.