Crow v. Becker

Four defenses were made by the answer in this case, and of course there were as many issues to be tried by the jury. 1. Whether a sum was paid by the defendants to the plaintiffs, exceeding the work actually done by them. 2. Whether the defendants sustained damage by the unworkmanlike and unskillful performance of such work. 3. Whether,, such, work was not completed within the time agreed on; "and 4. Whether the defendants sustained damage by the abandonment of such work by the plaintiffs.

All of such issues are presumed to have been passed upon

In this case, a question was put to a witness (the defendant Becker,) whether the price to be paid was “ that on a contract for a rough job ?” To which the defendants’ counsel objected, and excepted to its admission. This question evidently might have had its effect on the jury, for even the learned justice, before whom the action was tried, remarked to them, “ that the price named in the contract did not call for a very superior class of work;” and the jury might have been induced to think from the admission of the evidence, that they were authorized to determine the class of work from the price paid, and were to be governed by that. It is true, the judge in charging the jury, in other respects confined his remarks to the question of abandonment. But he did not exclude from their consideration the other defenses in the action, in determining on which, .the jury might have been governed by the improper evidence already admitted, as the judge evidently was.

I do not deem it necessary in this case, to discuss the question whether, on a motion for a new trial on a case, for misdirection of the judge, it is essential that an exception should have been taken to his charge on the trial, on the point objected to on the hearing. Although Archer v. Hubbell, ( 4 Wend. 514 ,) seems to be decisive of it in the Supreme Court, sustained as it is by People v. Holmes, ( 5 Wend. 193 ,) and Hastings v. McKinley, ( 3 Code Rep. 10 ,) this court seems in Cook v. Hill, ( 3 Sandf. 341 ,) and Stoddard v. Long Island Railroad Company, (5 id. 180,) to have held differently but it seems also to have been governed by the consideration that upon the whole case, the party succeeding was entitled to recover.

But, for the error in admitting the testimony in answer to the question, whose admission was objected to, the defendants are entitled to a new trial, with costs to abide the event.

This action is brought to recover a balance alleged to be due for mason work done under a contract between the plaintiffs and defendants.

The defenses set up in the answer are, 1st. Payment of a sum more than sufficient to cover the value of the work actually done.

2d. Unworkmanlike and unskillful performance, to the defendant’s damage, of $400.

3d. Non-completion within the time agreed upon.

4th. Abandonment of the work by the plaintiffs, and damage occasioned thereby.

On the trial the defendant Becker was called as a witness, and, among other things, asked: In consequence of Mr. Crow not having the work completed by the 15th October, how much did you lose on your contract with Mr. Jones ?

Which question was objected to, and ruled out. He was then asked by the court: “ $1500 would be a contract for a rough job ?”

Which question was objected to, but allowed, and exception taken.

He answered: “Yes, sir.’'

The court then remarked: “ $1500 for a building of this dimension, is little enough.” To which remark the defendants’ counsel excepted.

He was then asked by his counsel: “In consequence of the delay and failure of Mr. Crow to complete the work at ■ the time agreed upon, what amount of damages did you sustain ?”

Which question was objected to, and excluded.

He was then, after cross-examination, asked on his redirect (nothing in the cross-examination calling for the . question,) “ Were you acquainted with the value of rentals in that vicinity during May, 1860?” Which was objected to. The defendants’ counsel then offered to show the loss of rents on the building from October 15 to December 6, which was excluded.

Jonathan See, a witness on behalf of the defendants, after

The first two questions call for a decision by the witness, on mixed questions of law and fact. It is not every loss which a party may deem himself to have sustained by a breach of contract, that will be regarded as damages by the law; yet by the second question he is necessarily asked to determine how much, and what damages he is to recover, and by the first question that there was a loss by reason of non-performance by the plaintiffs. These are matters' to be determined by the jury, under direction of the judge. I think it highly improper to have a whole issue decided, both as to the law and the fact, by answers to general questions. It is true, the other side may, by a skillful' cross-examination, show precisely in what manner the witness arrives at his estimates, and thus save himself from being charged with improper items; but, as it devolves on the party claiming damages to prove them, I see no reason why it should be made easy for him by swearing to generalities, to give prima facie evidence as to the amount, and impose on the other side the difficult task of getting rid of the effect of this general oath, by eliminating through the medium of a long cross-examination, the sources of knowledge from, and the basis on which, the estimate is made, and the items composing it.

The third question, and the accompanying offer, did not go far enough. As Mr. Jones suffered the loss of rent (if there was any) the defendant could not in any event be' allowed that loss, unless he showed that he was compelled to deduct it from his contract price with Mr.' Jones. This' he did not propose to show. But there is another objection. The defendant had closed the direct-examination of• the witness; he had been cross-examined, and the defend-,

The defendants’ counsel asked the following question: State the contents of that paper ? An objection to the question was sustained, and an exception taken. No notice to produce the paper had been given. To avoid the effect of this, the defendants say that the pleadings notified the plaintiffs that this paper was relied on. All that is in the pleadings on this subject, is the allegation “ that due notice was given to the plaintiff;” whether written or verbal, is not stated. It might be either, and yet be due. This allegation, surely, cannot be said to put the plaintiff on guard that a written notice is relied on. Again, the defendants say, the plaintiff in his testimony on the trial denied ever having received such notice, or having possession of it; consequently, a notice to produce would be superfluous. I do not so understand the testimony. The plaintiff" says he cannot swear that such notice was not served on him ; he only says, it was not, to his knowledge. If notice to produce had been given, he could have examined Ms papers, and have been prepared either to produce or deny that he ever had it, or admit that he had it, but lost it; or denying all knowledge of it, also deny that it is in his possession. A want of present knowledge as to the service or possession of a paper, arising perhaps wholly from not having made search for it, cannot excuse the necessity of giving a notice to produce, the object of which is to give the party so noticed an opportunity to look for the paper, and to produce it if he has it, and sees fit so to do.

A reversal cannot be had by reason of an error, (if any such there be,) in putting the question: “ $1500 would be a contract for a rough job ?” or in the court’s making the remark, “ $1500 for a building of this dimension, is little

It is urged that the verdict is against the weight of evidence. The verdict rendered was that the plaintiff had not abandoned the work, but had completed it. As this was the only matter left by the charge to their consideration, it is absurd to say they rendered a verdict upon any other; it would be more absurd to say, that because the evidence on an issue not left to them, required a verdict for the defendants, therefore, their • verdict in favor of the plaintiffs, on an issue which was left to them, is against the weight of evidence.

The only question then on this point is, whether the evidence on the subject of the abandonment of the work, is such as to call for setting aside the verdict, as being against the weight of evidence. The evidence on that point was . quite conflicting. I understand the rule to be, that when a jury have by their verdict settled such conflict of evidence, their verdict will be regarded as conclusive, and will not be disturbed, because from the written or printed testimony the court think the preponderance of evidence to be contrary to the verdict, or would have been better satisfied with a verdict the other way". This case exemplifies the soundness of the rule. Upon the printed case before me, it would be exceedingly difficult to pass on the question, while if I had presided at the time, I should

The jury had better opportunities for arriving at a.correct conclusion than the general term has, and it is impossible for this court to say, under the evidence in the case, that the conclusion they did arrive at was incorrect.

The remaining point raised on this appeal is, that the judge erred in-not charging the jury upon the law applicable to the facts proved. He did charge on the issue of abandonment, and correctly. He did not charge on the other issues, nor was he requested to. The defendants’, counsel not having requested a charge on the other issues, cannot now claim that there were other issues which should have been submitted to the jury. If this were a pure bill of exceptions, it is evident that the defendants could not now take such objection, simply because there is no exception which covers it. But it is a case and bill of exceptions combined, and it is claimed that the- fact of the motion being for a new trial on a case, entitles the defendants now to take this objection, although it was not taken at the trial. I think it does not, and in support of my views might rely on the cases of New York and Erie R. R. Co. v. Cook, ( 2 Sandf. 732 ;) Cook v. Hill, (3 id. 341;) Stoddard v. Long Island R. R. Co., (5 id. 180;) Jackson ex dem. Beekman v. Stephens, ( 13 John. 495 .)

In Jackson ex dem. Beekman v. Stephens, the defendant moved for a new trial on a case. The evidence was pretty strong in favor of the defendant on the question of adverse possession. But that question was not submitted to the jury. There did not appear to have been objection made on the trial to such non-submission, nor any request preferred to have it submitted. The court' held, that it must be presumed that such defense was abandoned on the trial. This case is on quatuor pedibus with the one at. bar, and I have been unable to find any case that directly

To pass to our own country, Graham, in his book on Practice, at page 293, lays down the rule, that on a motion for a new trial on a case, the court will not take notice of an objection not raised at the trial. This rule does not depart

The same remarks will apply, and are to be understood as applying, without repetition, to other cases, where from the. same cause, the courts deduce the effect of an aequiesence in a ruling or decision, or in a certain disposition of a case, or of a presumption of an assumption by both parties at the trial, of the existence of a fact, or a presumption of a consent at the trial to substitute the judge for the juiy, in the determination of all, or some of the disputed questions involved. Thus, in Ford v. Monroe, ( 20 Wend. 210 ,) the defendant was not allowed to argue, as a cause for a new trial, that the proof was insufficient to establish that the servant was acting in the business of the master, because it was assumed at the trial that the proof was sufficient. So in Beekman v. Bond, ( 19 Wend. 444 ,) it was held that the point, that the value had not been paid for a boat, could not be urged, because on the trial it was assumed that it had been paid. Both these cases were motions for a new trial on a case, and in both the court refused to hear an objection that certain matters were not proved, on the ground that it was assumed at the trial that they were proved. But how did the court arrive at the conclusion that there was such assumption ? Only from the fact that on the trial attention was not drawn to such want of proof,

‘There are three cases which, on a cursory view, might appear to be antagonistic, but are not in fact. They are Archer v. Hubbell, ( 4 Wend. 514 ;) People v. Holmes, (5 id. 191 Scott v. Lilienthal, ( 9 Bosw. 224 .) I will examine thein' in- inverse, order. In the case in 9 Bosworth, the learned judge who delivered the opinion of the court, after deciding that no exception had been taken sufficiently covering-the objection raised, so as to permit a new trial to be granted on a bill of exceptions, held that what transpired on'the trial amounted to taking such objection to the reception of , evidence, as would authorize the court to grant a new trial upon a case. This decision accordingly comes within the general rule, which does not require an exception for the purpose of founding a motion for a new -trial on a case, but simply that the point shall have been raised on the trial by objection or otherwise. In 5 Wendell, 191, the court held "that the point had been raised at the trial by objection to' the defense, and having once been raised, need not 'be- reiterated by an objection to the charge submitting such defense to the jury, and the court says: “If they had stood by in perfect silence, and heard the judge submit to the jury a matter of defense which was excluded by the pleadings, the court might not listen to them on a motion for a new trial for that cause.”

As the case was disposed of on the ground that a sufficient objection had been taken, it was unnecessary to decide what

The case of Archer v. Hubbell, ( 4 Wend. 514 ,) does not seem to have been reported with a view to the point under discussion, as the only statement concerning it is contained in the reporter’s note as to what an oral decision on the argument was. It consequently does not appear whether any, and if any, what objections were raised at the trial. The point made was, that objections to the charge could not be raised, because the charge was not excepted to, and the court held that such rule only applied to bills of exceptions. This ruling is undoubtedly correct. The distinct point made was, that on a case a charge could not be reviewed unless there were exceptions. This point the court met, holding that the doctrine of exceptions was only applicable to bills of exceptions. To this extent, and to this extent only, is the case authority, and in this view of it is perfectly consistent with the general rule above laid down, relative to motions for new trials on a case. By that rule, it was never necessary that exceptions should be taken, but simply that the points relied on for a new trial, should have been raised at the trial by objection or otherwise. The point taken in 4 Wendell, was, not that the question had not been raised at the trial, but that no exception had been taken to its decision. Whatever misapprehension there may be as to the existence of a rule, that on motion for a new trial on a case, no objections can be heard unless raised at the trial, seems to me due to a hurried reading of the case in 4 Wendell, and a failure to recognize the broad distinction between exceptions and objections; a distinction not new, but well recognized by the English and our practice.

There is, however, an exception to the general rule, which is, that where there are objections, by reason whereof the party who has obtained a verdict can, in no possible event,

From this review, I am satisfied that upon authority, the decisions of Chief Justice Oakley, in the New York and Erie R. R. Co. v. Cook, ( 2 Sandf. 732 ,) that a party cannot z move for a new trial on a point not taken at the trial, if it be such as might have been obviated by proof, if it h'ad been raised; and the decisions of the same chief justice in Cook v. Hill, ( 3 Sandf. 341 ,) and of Judge Duer, in Stoddard V. Long Island R. R. Co., ( 5 Sandf. 180 ,) that objection to

There may possibly be another exception to the rule, (although I do not regard it as well settled,) which is, where the judge charges correctly, but the language used is such as tends to mislead, and has, in fact, misled the jury. This may be admitted as an exception, on the ground that it cannot be ascertained that the jury has been misled until after the rendition of the verdict, at which time an objection comes too late.

Thus, upon authority, the general rule is well settled, that on a motion for a new trial on a case, the court will entertain no objection not raised at the trial; and the exception to it, that they will entertain an objection, which, if taken, could not have been obviated; or, in other words, an objection by reason whereof the party obtaining the verdict can, in no possible event, and under no possible circumstances, be entitled to it in that action, is also well settled.

The rule, it appears to me, is based on sound principles. To allow a verdict to be set aside for errors in the admission or rejection of testimony, or in charging or not charging the jury, where such errors were in no manner pointed out, suggested or objected to on the trial, would not only be unfair to the judge who tried the cause, but would tend to lead some counsel to suffer error to be committed for the purpose'of setting aside a verdict, if it should happen to be unfavorable, and others to prepare themselves, negligently depending upon their general ability to put in, or offer to put 'in, such evidence as should, in any aspect of the case, be sufficient, and, if the verdict be against them, then em

Although a party may have no right to urge an objection not taken at the trial, still the court may possibly, in a case . oí gross injustice, of its own motion, set aside a verdict, for objections not taken at the trial. Indeed, in one case, People v. Barnes, ( 12 Wend. 492 ,) the Supreme Court went further, and set aside a nonsuit, and ordered a new trial, although they held that the nonsuit was properly granted; and this was done for the reason, as stated in the opinion, that the plaintiffs had fallen into an error in their construction of the statute, and might have a good cause of action in point of fact. There is stated in the head note, but not in the opinion, the additional reason, that the court has reason to believe that without such relief the cause of action would be lost.

I do not propose to discuss the subject as to what power a court possesses in granting new trials, of their own motion ; whether it is a wholly unrestricted power, or whether there are any, and, if so, what restrictions. It is sufficient to say, that this case does not present such features as to call on the court to exercise, on its own motion, any prerogative it may have. The main issue in the case, viz. abandonment, was properly submitted to the jury, and I see no reason for disturbing their verdict on that issue. With reference to the issue of non-completion by the day, there was no proof of any damages arising therefrom, and, therefore, there was nothing to submit to the jury. On the issue as to unworkmanlike and unskillful performance, (on the decision of which issue, that of payment to the extent of the value of the work necessarily depends,) there was general evidence on the. part of the plaintiffs that the work was done in a workmanlike manner, and was better than ordinary work; while, on the part of the defendants, there was general evidence that the work was rough, and not workmanlike. The only matters particularized, however, were that, by the settling of one of the

The plaintiffs admit the settling of pier, but say it was the fault of the ground, for which they are not accountable; and they deny that any of their work had to be taken down and rebuilt.

There is a conflict of testimony; the plaintiffs are just as likely to be correct as the defendants. Indeed, the jury having, on another issue, the conflicting testimony on which was left to them, found for the plaintiffs, it is but fair to assume, in considering whether the court should, of its own motion, take action, that the plaintiffs are more likely to be correct on this issue than the defendants, and that the jury, if it had have been left to them, would have so found. Conceding that the court can, of its own motion, interpose and grant a new trial for objections not taken at the trial, the circumstances of this case do not call for the exercise of such power; if they do, there is no case in which the court might not be called on to exercise such power, for a weaker case than this can scarcely be imagined.-

I am of opinion, for the reasons assigned, that the judgment should be affirmed, with costs.