McKnight v. Newell

Opinion by Mb. Justice Potteb, In the spring of 1891, the defendant purchased property upon Fifth avenue in the city of Pittsburg, and proceeded to enlarge and reconstruct the buildings upon the lot, to fit the premises for use as a hotel. According to his testimony, Mr. Newell gave the entire contract for the work to the firm of Murphy & Hamilton. They did the carpentry work themselves, and sublet the other portions of the work to other persons. The plumbing for the building was sublet to the ■ plaintiffs in this case, and they admit that they have received payment in full from Murphy & Hamilton for all work done for them ; but they allege that, in addition to the work done for Murphy & Hamilton, they did a large amount of work for Mr. Newell, the defendant; and it is for that they seek to recover in this suit. The defendant denies that the plaintiffs did any work directly for him, for which they have not been fully paid, and more than paid. He alleges that he paid the plaintiffs a large sum of money under the mistaken impression that it was to be applied upon the amount due from him to his general contractors, Murphy & Hamilton ; and for that he claims a certificate in his favor. The course of dealing between Murphy & Hamilton and the plaintiffs was somewhat complicated. Several different contracts were made, which aggregated about $8,000. Then the defendant, Newell, made two contracts with the plaintiffs for electric light fixtures, and dining room fixtures, amounting to some $2,200, for which it is alleged he paid in full. All [567] the conflicting claims of the parties to this litigation were very carefully submitted to the jury by the trial judge, and the result was a verdict which sustained the claims of the defendant. At the trial the plaintiffs offered an account book purporting to be a book of original entries. This book was identified as Exhibit No. 1. The first, second and third assignments of error raised the question that this book, having been admitted in evidence, its effect should not have been limited, as it was, to that of mere memoranda, to be used only in connection with the oral testimony of witnesses. In the charge, the court said that the book lacked the essentials of a book of original entries, and could not be considered as such. But the jury were told that they might examine it, and, in connection with the testimony of witnesses, give it such credit as they might think it. was entitled to receive. We find from the testimony, that when the book was first offered in evidence, the court did not pass definitely upon the question, but against defendant’s objection permitted it to be offered under a claim only, that it was a book of original entry. The attitude of the court appears from the ruling made upon the evidence of one of the plaintiffs. He said : “ Mr. Victory may testify to anything he recalls having been furnished there, and may use the book ‘Exhibit No. 1 ’ as a means of refreshing his memory, if he knows it to be correct. We will permit him to testify to any items that he can personally recall having been put into the building, for any work that he personally recalls having been done.” Under this permission, Mr. Victory and Mr. McKnight both testified. We do not see that the court below went any farther than this, and when the book itself was offered and admitted in evidence, it may fairly be regarded as for the same purpose, and nothing more, than that for which the witnesses for the plaintiffs had been been permitted to use it in testifying. While the plaintiffs offered the book in evidence “ for the purpose of proving the sale and delivery and the price of the goods,” they did not rely upon it to prove these facts, but subsequently offered a large amount of other testimony to_establish the performance of the work, and its value. The detailed character of the oral testimony, and the minute manner [568] in which the items of the claims were set forth, and described by the witnesses, make it apparent that the plaintiffs depended by no means solely upon the effect of the account book. The further fact, too, that the book was sent out with the jury, and examined fully by them, would seem to have given the plaintiffs every advantage to which they were properly entitled in any aspect of the question. We are not convinced that any injustice was done to the plaintiffs by the rulings of the trial judge, as set forth in the first three specifications of error. The book was clearly inadmissible as a book of original entries. It was not one of the regular books of the firm, it contained only the accounts with defendant, and the entries were not made contemporaneously with the doing of the work. Many of the entries were also lumping charges, and, therefore, inadmissible : Corr v. Sellers, 100 Pa. 169. If any mistake was made in the admission of the book when offered, it was at the instance of the plaintiffs and against the objection of the defendant. The plaintiffs cannot now complain of an error induced by themselves, nor can they properly object to the position taken by the court in that portion of the charge which limited the effect of the book as evidence. As to the fourth and fifth assignments of error: The plaintiffs presented no points requesting instructions as to the alleged set-off, except the verbal request, which is covered by the fourth assignment. This request was made by counsel after the charge had been delivered, and the reply made by the court is not likely to have affected the jury ; but, if so, it was substantially correct. It is undoubtedly true that the burden of proof is upon a defendant alleging a set-off or counterclaim. In the present case, however, there was no dispute whatever as to the amount of money paid by the defendant to plaintiffs. The only question was as to the work done by plaintiffs outside the contracts with Murphy & Hamilton. The burden of proof as to this work was certainly upon the plaintiffs. If they failed to show that they had performed as much work directly for the defendant as would cover his payments, then the right to recover the amount overpaid was established without the necessity of further proof. If there had been any dispute as to the total sum paid by defendant, then the burden would have rested on [569] him to establish his payments. But the payments he claimed to have made were all admitted. The sixth assignment alleges error in the refusal to strike out the answer of a witness, based upon a guess. The answer does not seem to have been made in accordance with the ruling of the court. The witness admitted that any opinion he expressed as to the work done and its value would be no more than a guess; he was not shown to have any expert knowledge of the subject, and the value he testified to, was not his own individual opinion, but the result of joint figuring by himself and his bookkeeper. It would seem that the answer should have been stricken out. But it appears that, while the estimate was a guess in so far as any details were concerned, yet it was made so high, based upon his knowledge of the outside' limit of what the cost could have been, that the testimony could not have harmed the plaintiffs. The testimony of another witness, who had knowledge of the details, fixed the value of the work done, and materials furnished by the plaintiffs for that specific portion of the work, at figures far below that of the witness to whose testimony exception is taken. The evidence of which complaint is made in the assignment appears by comparison to be highly favorable to the plaintiffs. It does not seem, therefore, that this evidence could have harmed the plaintiffs in any way, and the refusal to strike it out is not reversible error. The seventh assignment of error is in disregard of Bule 31, in that full copies of the writings rejected as evidence are not printed in the paper-book. They seem to have consisted of slips of paper, containing memoranda made by the workmen. There was no evidence as to when or by whom the slips were made. It merely appeared that they were handed in by the men employed by plaintiffs. They were found by plaintiffs during the trial in an old barrel in their shed. The persons who wrote them were not called, and their handwriting was not identified. The assignments of error are all overruled, and the judgment is affirmed.