4 Mo. App. 271 | Mo. Ct. App. | 1877
delivered the opinion of the court.
This is a suit on a mechanic’s lien. The first countin the
The testimony was conflicting on every issue except as to the counter-claims. There was a verdict for plaintiff for $1,586.81. Plaintiff remitted $527, and judgment was rendered for the balance ; and plaintiff appeals.
Several instructions were given at the instance of either side, and some instructions asked by defendant were refused; but as no exceptions were saved, during the trial, to the action of the court in giving and refusing instructions, we shall not consider them. Objections to instructions, taken for the first time on the motion for a new trial, will not be considered here. The record-must show that exceptions were taken at the time the instructions were passed upon, otherwise they are not subject to review by the appellate court. 14 Mo. 367.
It appears that the work sued for was to be done according to plans and specifications furnished by one Bridwell, the architect and superintendent employed by defendant. A sum of something more than $500 is claimed by plaintiff for extra work, caused by changes in the plans. Defendant denies that any changes in the plans were made with his consent. On the trial, plaintiff was introduced as a witness on his own behalf, and in the course of his testimony said:
Defendant’s counsel objected to any evidence of changes in the work, not known to defendant, going to the jury, and asked that it be ruled out; to which the court said that the witness could state whether defendant assented to the change or not. However, no further statement on the subject was asked of, - or made by, the witness at that time. The defendant’s counsel objected to the action of the court in not ruling out this evidence, and the examination proceeded on other points.
We see nothing in this action of the court to warrant a reversal of the judgment. If defendant’s counsel had pressed the matter, and required the witness to state whether or not Stagg knew of these changes, the court would, perhaps, on application of counsel, have ruled out this testimony. As it was, the jury were instructed, at the instance of defendant, that Bridwell had no authority to agree for Stagg to any changes in the work, and that defendant was not bound by any such agreement of Bridwell, if such an agreement was made. And if, 'as defendant’s counsel contends, the amount found includes the $500 for alleged alterations, a remittitur was entered for this amount, and the injustice redressed, in the trial court.
An objection was made to the introduction on the part of the plaintiff of a letter addressed by Bridwell to Naughton, dated March 1, 1873, in which Bridwell requires Naughton
The next objection urged by appellant is that the court admitted in evidence a copy of a paper dated August 1, 1872, when the absence of the original had not been accounted for. This ground of objection is not shown to have been specifically urged on the trial, and it cannot be considered here.
The defendant, Stagg, in his own behalf, testified that he had built and sold houses ; that he considered himself a good judge of a good house, and could appreciate one ; that he was not in the real-estate business, but in the business of loaning money on real estate, and was thus in the habit of examining the general character of property. He was then asked whether he was competent to decide as to the differ
After the questions already put, and the answers elicited, Mr. Stagg’s own opinion as to his competency to testify must be wholly unimportant. He was not an expert, as the word is used by writers on evidence, and that was enough. It was, therefore, no error to exclude his answer as to his-own competency. We are referred, on this point, to Squire v. Wright, 1 Mo. App. 172. But there is nothing in that
The last point to which counsel for appellant directs our. attention is that the trial court limited counsel on each side to thirty minutes in arguing the case. There is not in this such an abuse of discretion as calls for interference on our part.
There is no error preserved in this record which is sufficient ground to warrant a reversal of the judgment, and it is, therefore, affirmed.