Schurtz v. Kerkow

McFarland, J. This is an action to recover for services rendered by plaintiff to defendant as manager of a certain restaurant and saloon, called the Vienna Buffet, under a contract by which plaintiff was to have one half of the net profits, to be computed monthly. The issue was as to the amount of the profits between June 1 and September 1, 1888. Such amount was found to be $2,550.55, for one half of which, less certain payments, plaintiff had judgment. Defendant appeals from the judgment, and from an order denying a new trial. [278] 1. The principal evidence for plaintiff, aside from parts of a cash-book, consisted of the testimony of one Blackman. He testified that he was an expert accountant; that he made an examination of the books of the Vienna Buffet; and that the examination showed the net profits of the business from June 1st to August 11th to be $2,262.90. Upon cross-examination, he said that, with the exception of some of the items in the cashbook, he did not personally examine the books; that his partner made the detailed examination of the books and furnished the figures from which he (the witness) made the calculations; and that he had full confidence in the ability and honesty of his partner to furnish the figures from the books correctly. His partner was not examined as a witness, and defendant contends that the evidence does not justify the judgment, because the partner was not called to prove that the figures which he gave Blackman were correctly taken from the books. But defendant did not make any objection to the testimony of Blackman; he did not say that it was hearsay, or inadmissible upon any other ground, and he did not move to strike it out. Moreover, the examination was made by Blackman at the request of defendant, and without the knowledge of plaintiff; and Blackman testifies that his statement was shown to defendant and plaintiff and “assented to,” although in another part of his testimony he says that defendant disputed it “by saying .those could not be the profits,” by which, we suppose, he means that defendant did not deny that the figures were correctly taken from the books, but thought that the calculation must be wrong. Under these circumstances, no objection having been made to the testimony of Blackman, the court had the right to assume that the figures given to Blackman by his partner were correct. This point, therefore, furnishes no ground for a reversal of the judgment. 2. But the court erred, we think, materially, in ruling [279] out certain evidence offered by defendant. The court seems to have tried the case upon the erroneous theory that the books were the only evidence as to the profits of the business, and that none other should be received. One or two questions were asked defendant, when on the witness-stand, which were perhaps properly objected to, on the ground that they called for a conclusion of the witness; but to many questions that objection was not made, and could not have been properly made. For instance, the following questions were asked: “What were the daily expenses of the saloon ? What were the profits in the saloon business, and what in the restaurant business, during that time? In what articles are the biggest profits in that business? Are you able, from your knowledge of this business of the Vienna Buffet, and your experience in the saloon and restaurant business, to state what the profits were on the restaurant business as carried on there, and the saloon business as carried on there, from June 2d to September 1st ?” To all of these questions the objections were made that they were irrelevant, incompetent, and immaterial, and that the books were the best evidence; and the objections were sustained, except to the question last above stated, which was “taken subject to the objection,” and to which the witness answered: “ I am.” (It does not appear that any ruling was made as to said last question.) Exceptions were taken to the rulings of the court on the questions and to other similar rulings. While the books were admissible evidence on the issue of profits they did not exclude other evidence. If the defendant or any other witness knew anything about those profits he should have been allowed to tell it. Of course, mere conclusions or opinions should be excluded. Judgment and order reversed, and cause remanded for a new trial. Works, J., Fox, J., and Shartstein, J., concurred.