107 F. 881 | 8th Cir. | 1901
The Parke & Lacy Company, a corporation, organized under the laws of the state of California, brought this action against the Mine & Smelter Supply Company, a corporation organized under the laws of the state of Colorado, upon three causes of action declared on in separate counts in the complaint. The first count was based upon an account stated for $277.97, the second upon an account' for $1,6'16.50 for goods sold and delivered, and the third upon an account for $1,750 for money had and received. A general demurrer to the complaint was overruled. The answer was a general denial, and a counterclaim for $8,000 damages growing out of alleged defects in certain furnaces for roasting and treating mineral-bearing ores sold by the plaintiff to the defendant. In the progress of the trial the court made a ruling which the defendant construed as precluding it from recovering on its counterclaim in this action, whereupon, by leave pf the court, it withdrew its counterclaim. The subject-matter of the counterclaim probably led to this litigation, and, when that was withdrawn, there seems to have been little or nothing left to litigate over. The plaintiff recovered judgment upon its several causes of action, less an admitted credit of $50 aliowed at the trial on one of the accounts.
It is assigned for error that the count upon the account stated does not, in terms, allege a promise to pay. The count alleges that an account was stated between the parties, upon which statement and accounting a balance was found due from the defendant to the plaintiff of $277.97, and that the defendant has not paid the balance thus found due, or any part of it. Whatever may have been
It is further assigned for error (hat the court refused to permit Mr. Ilarron, a witness called by the plaintiff, to answer certain questions propounded to him by the defendant on his cross-examination. This witness ivas the vice president of the plaintiff company, and was called to prove that the letters and statements constituting the account stated were in the handwriting of the defendant, and that the letters and statements, offered in evidence were the originals. He was not examined by the plaintiff touching the item or items of the account going to make up the account stated, nor at all in reference to the dealings between the plaintiff and the defendant and the state of accounts between them. His testimony in chief was confined strictly to the mere identification of the
“Q. What disposition has boen made of the claim of the Mine & Smelter Supply Company on account of these back charges? A. They were paid as made, by the reduction company. (Objection that that is a subsequent account, and not proper cross-examination. Mr. Hughes [defendant’s attorney]: Their claim, without undertaking to prove it by evidence, is this was accepted as a statement of the accounts between the parties, whereas at all times these parties are revoking the statement, claiming there were other credits. The Court: I think that is not involved in the present examination. I understand this to be a statement of account admitting this item of $277.97, and these other matters stand outside of that altogether. Mr. Hughes: We want to inquire, to show, your honor, that some of them are items by Mr. Wool which he ought to have allowed, which by later letter they have credited. The Court: That does not come in here, and we cannot inquire of this witness in the way of cross-examination. Mr. Hughes: Then your honor overrules the question that has just been asked? The Court: Yes, sir. To which ruling of the court counsel for defendant then and there duly excepted.) Mr. Hughes: I desire to ask these other questions so as to put them in proper form. Q. Mr. Harron, in this letter it refers to the extra gear wheels that Mr. Wool ordered to be sent to these people, and they refused to pay. Do you know what that means? (Objection for the reasons before stated. Objection sustained, to which ruling defendant’s counsel duly excepted.) Q. Is it not true you have charged the account of this company for these matters, and that they were in dispute between you, and have so remained up to the present time, and up to the time the suit was brought? (Objected to by plaintiff’s counsel as immaterial and improper. Objection sustained.)”
The course of the examination was such that it must have been understood by all that the objection made and sustained to the preceding questions of the same character, viz. that they were not proper cross-examination, applied equally to the question last quoted. Moreover, the objection that the question was “immaterial and improper” amounted to nothing more than a general objection; and •the rule is well settled that, “when evidence is excluded upon a mere general objection, the ruling will be upheld, if any ground in fact existed for the exclusion. It will be assumed, in the absence of any request by the opposing party or the court to make the objection definite, that it was understood, and that the ruliqg was placed upon the right ground.” Tooley v. Bacon, 70 N. Y. 34, 37; Comstock v. Smith, 23 Me. 202; Bowers v. Block, 129 Ill. 424, 21. N. E. 807.