Crow v. Becker

By the court, Robertson, Ch. J. 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 plaintiff, exceeding the work actually done by him. 2. Whether the defendants sustained damage by the unworkmanlike and unskillful performance [215] 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 plaintiff. All of such issues are presumed to have been passed upon by the jury, unless expressly withdrawn from their consideration, and every such evidence which might influence them in deciding any of such issues improperly, being illegal, should be excluded, if objected to. 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 touts 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 workand 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, confined his remarks otherwise 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 agt. Hubbell (4 Wend. 514), seems to-be decisive of it in the supreme court, sustained as it is by People agt. Holmes (5 Wend. 193), and Hastings agt. McKinley (3 Code R. 10), this court seems in Cook agt. Hill (3 Sandf. 341), and Stoddard agt. Long Island R. R. Co. (5 Id. 180), to have held differently; but it seems also to have been governed by the [216] 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 defendant is entitled to a new trial, with costs to abide the event.