| Tex. | Jul 1, 1859
The only ruling complained of upon any question of law presented by the record, is upon the admissibility of evidence. It appears, that “the plaintiff objected to defendants proving the value of the services of a mechanic, without first proving that defendants were out of employment, and could not obtain work,” which objection the court overruled. It is insisted that this was error. But it may be answered, that it is within the discretion of the court to permit a party to in
Moreover, the exception is too general, to enable this court to revise the ruling of the court below, upon the admissibility of evidence. It does not appear, that objection was taken to the testimony of any witness in particular, or to any particular evidence, when it was offered. The particular ruling complained of ought distinctly to appear, as it occurred upon the trial. But the defendants had introduced evidence, conducing to show in what manner they had been occupied; and if it was intended, that objection was taken at the proper time, to the evidence offered for the purpose of showing the damage sustained by the defendants, in consequence of being less profitably employed than they might have been, but for their engagement with the plaintiff, and his delay in providing material for the completion of the work, it is not perceived in what other manner the defendants could prove the damages they alleged they had sustained. To have excluded the evidence, would have been to have rejected their defence. But upon the ground of the indefiniteness of the exception, it must be held, that there is no error in the ruling.
This case was before this court on a former appeal. There have since been two concurring verdicts for the defendants. The evidence is not of a character to lead, irresistibly, to any certain conclusion of fact, in respect to the matter in controversy. We might incline to a different conclusion from that attained by the jury, upon the whole evidence; but it was their province to weigh the evidence, and it cannot, with certainty, be said, that their finding is contrary to the evidence. The litigation has been protracted and expensive. A great number of witnesses have been detained in attendance upon the court, and no less than five jury trials have been had. The amount really in controversy, is not very considerable. It is not certain that the result, upon another trial, would be more favorable to the appellant ; and we think, upon the whole, that it was a proper case for the application, by the court, of the provision of the
Judgment affirmed.