Union Indemnity Co. v. Perry

BeogkgN, J. The first witness for plaintiff was asked the following question on cross-examination by the defendant: “And that is all that he (Perry) ever contracted to pay, and that is what he told you, wasn’t it?” The witness would have answered “Yes,” but upon objection of plaintiff the question and answer were excluded, and the defendant excepted. This exception is not sustained for the reason that the contract was in writing and the amount to be paid was specified in the instrument. Neither was the evidence competent at the time it was offered to corroborate the defendant Perry for the reason that Perry had not then been examined as a witness or offered any testimony as to the transaction. The plaintiff offered the city engineer as a witness and propounded the following question: “Mr. Taplin, state whether or not in July, 1925, at the time of the letting of this contract, if you as city engineer for the city of High Point, contemplated the construction of additional water and sewer extensions to that estimated in the contract?” The witness *767 answered, “Yes, sir, I did.” Tbe defendant excepted to tbe question and answer upon tbe theory tbat tbe city engineer bad not communicated to tbe defendant tbe fact tbat other work was contemplated at tbe time of tbe letting. However, on redirect examination by tbe plaintiff, witness testified without objection: “At tbe time this contract of July, 1925, was let, this public letting, I bad in mind to do other work of tbe same kind for tbe city. Tbe council told me to get prices on water lines and tbat they might give it to Mr. Perry and they might not. . . . When tbe bidders, including Mr. Perry, came over there to bid on tbe work they asked me if I thought there would be more work. I replied tbat I thought there would be, but to what extent I could not say:” Tbe foregoing testimony of witness not having been elicited on cross-examination, and no objection having been taken thereto, even if bis former testimony was incompetent, tbe exception cannot be sustained. Shelton v. R. R., 193 N. C., 670. The defendant in apt time objected to tbe issue submitted to tbe jury and tendered an issue as to indebtedness which tbe court declined to submit. Tbe opinion of tbe Court upon tbe former appeal in 198 N. C., 286, did not undertake to frame issues for tbe trial of tbe cause, but rather to state tbe propositions of law involved in tbe appeal. Tbe amount of work done under tbe contract, whether performed under tbe original written contract or in pursuance of a subsequent verbal contract, produced a clear cut issue of fact, and nothing else appearing, tbe defendant’s exception to tbe failure of tbe court to submit an issue of indebtedness would be sound and maintainable, but tbe record tends to show tbat tbe amount of work done was not in controversy. It was alleged in tbe complaint tbat tbe amount of extra work done was $161,815.48, and tbe amendment to tbe answer seems to recognize tbe correctness of the amount stated. Furthermore, it was stipulated by counsel for both parties tbat tbe statement of estimates made by tbe city engineer for work done from 25 July, 1925, to 8 March, 1927, and offered at tbe trial was correct. These estimates showed tbe amount of work done ■ amounted to $219,763.88. Tbe original contract in writing provided for work amounting to $57,948.40. Tbe difference between these two amounts is $161,815.48. Therefore, tbe amount of indebtedness was exclusively a matter of calculation, and hence tbe exception cannot be sustained. Exceptions were also taken upon tbe ground tbat tbe court did not correctly instruct tbe jury, but an examination of tbe entire charge fails to produce a conviction of error, and tbe judgment is affirmed. No error.