Corkery v. O'Neill

Opinion by W. D. Porter, J., This action was brought to recover a balance alleged to be due on a large number of oral contracts, under which the plaintiff had done plastering upon a score or more buildings. At the trial the principal facts disputed were: first, whether the plaintiff was to furnish the materials for the work upon four of [339] the contracts, and second, the amount of the credits to which defendant was entitled. The plaintiff called the defendant for cross-examination and examined him as to the terms of the various contracts and the work done under them. Defendant’s counsel then endeavored to introduce his defense by interrogating his client, as to the payments which he had made and other matters which his examination by plaintiff had not opened up, the plaintiff’s objections to this course of examination were sustained and upon exceptions to these rulings the first and second assignments of error are founded. As to these assignments of error, it is sufficient to say, that, the defendant did testify fully upon the very matters in question; he having been called in his own behalf, when the time came for putting in his defense in an orderly manner, and having answered the very questions which the court below, in the rulings complained of, excluded as not in order at that time. The first and second assignments of error are without merit. The third and fourth assignments may be considered together, they are based upon the rulings of the court upon the objections of the defendant to two questions which were asked the plaintiff. The objection of the defendant was in each case general. It is now very properly conceded by appellants’ counsel that the only valid ground of objection to either of the questions was to its form, that it was leading. When called as for cross-examination, the defendant had testified that the plaintiff had agreed to furnish the materials for the two buildings referred to in the questions respectively. In examining the plaintiff, his counsel had the right to have him give his version of the agreements, as well as to direct his attention to this particular matter and ask him if he had agreed to furnish that material. Even if the question was a leading one, no advantage of that could be taken here unless it appears by the record that the specific objection was made at the time, so that the examining party might have an opportunity to change the form of his interrogatory: Kemmerer v. Edelman, 28 Pa. 143. The fifth and sixth assignments are simply complaints against the order in which evidence was introduced. After the defendant had closed his testimony the court, against the objection of defendant, permitted the plaintiff' to answer the two questions complained of, exceptions were taken and this action of the [340] court is assigned for error. The only objection to either of the questions was that the testimony ought-to have been introduced in chief. This was a matter entirety within the discretion of the court below, and is not the subject of review here: Barnhart v. Pettit, 22 Pa. 135. The remaining assignments of error are founded upon nothing. They attempt to assign for error parts of the charge of the court; whereas the record showed neither an exception to the charge, nor a request that the court order the charge to be filed of record. Such assignments cannot be considered: Curtis v. Winston, 186 Pa. 492. Judgment affirmed.