42 P. 1068 | Cal. | 1895
Plaintiff brought this action to recover from the defendant the sum of $1,599, with interest thereon from June 1, 1892. The complaint contains three counts. In the first count it is alleged that the defendant is indebted to the plaintiff in the sum of $434 for cutting, at its special instance and request, two hundred and fifty cords of pine wood at one dollar per cord, and two hundred and thirty cords of redwood at eighty cents per cord. In the second count it is alleged that the defendant is indebted to the plaintiff in the sum of $1,165, balance due for cutting and delivering, at its special instance and request, twelve hundred and four and three-fourths cords of wood at $2.15 per cord, and for cutting twenty-two and one-half cords of heading bolts at one dollar and ten cents per cord, and that the cutting and
It is claimed for appellant that several errors were committed by the court in its rulings upon the admission of evidence, and that the findings were not justified by the evidence, and hence that the order should be reversed. It is not necessary to notice all of the rulings complained of, as most of them were, in our opinion, correct, but one of them, we think, was clearly erroneous. The plaintiff was a witness in his own behalf, and testified: That he made an agreement with Mr. Blum, the superintendent of the defendant company, to do the work for which he sought to recover under the first count of his complaint, and that in pursuance of the agreement he commenced cutting the wood in November, 1891, and finished the cutting in March, 1892. That he could not tell exactly how much wood he cut, but it was about four hundred cords. That “Mr. Blum agreed to measure the four hundred cords in January, and he didn’t come. The four hundred cords were to be paid for as soon as it was put up in the woods where I cut it. He agreed to pay when it was done, and he didn’t come up to measure it.....By March 4th it was all cut. It was to be all paid for by the 4th of March.....Mr. Blum said he would come in January, and pay for what they had cut, but he didn’t come, but come in March, and he didn’t ■measure, or do nothing.....It was agreed between Mr. Blum and myself that, when the wood was cut and put up, it' should be measured and paid for.....This four hundred cord lot of wood was in a condition last spring—April, May,
George Ley was called by plaintiff as a witness in rebuttal, and stated: “I had a conversation with Hickey about the four hundred cords. He was the foreman of the lime company.” He was then asked, “What did he tell you?” The question was objected to on the ground that it was incompetent, immaterial, irrelevant, not in rebuttal, and hearsay. The objection was overruled, and an exception reserved. The witness answered: “He was talking about the four hundred cord lot. He said that wood could be measured easy enough, if they only wanted to measure it; that he had measured lots of worse wood than that was—worse put up than that was.” The' witness further said that this statement was made to him since the suit was brought, and that no one but Hickey and himself was present. The objection to the question should have been sustained. Whether the wood was in condition to be measured before the suit was brought was a material issue in the case, and was sharply contested; there being evidence upon the question, other than that above referred to, introduced upon, both sides. If the purpose of the evidence sought to be elicited was to impeach the witness Hickey, it was clearly inadmissible, because the proper foundation for it had not been laid: Code Civ. Proc., sec. 2052. And if the purpose was to prove that the wood was in fact in condition to be measured, and should have been measured, before the suit was brought, it was in
We concur: Searls, C.; Haynes, C.
For the reasons given in the foregoing opinion the order is reversed and the cause remanded for a new trial.