Matthews v. Farrell

TYSON, J. It does not appear inferentially or otherwise, in the first connt of the complaint as amended, as seems to be contended in brief, that the demand sought to be enforced is for work performed under the contract other than for installing the plumbing work in the hotel. Besides, if it did so appear, that question is not raised by the demurrer. The count sufficiently avers a performance on the part of the plaintiff of the contract and an indebtedness to him on that account by defendant. The demurrer to the account was properly overruled. The sustaining of the demurrer to the fourth plea, after amendment, if erroneous, was clearly without injury, since the defendant could have had, and as matter of fact did have, the benefit of the facts alleged in it after amendment under other pleas upon which issue was joined. The demurrer interposed by defendant to plaintiff’s special replications numbered 3 and 4 should have been sustained. These replications were clearly no answer to the 7th plea as amended. Purporting as they do to answer several pleas, if bad as to one they cannot be sustained, if it be conceded that they are an answer to the other pleas. . At first the writer was disposed to think that the court erred in not excluding the admissions made by defendant to Blackmon upon the idea that they were made with a view to a compromise of the claim now sued on, which he, as attorney for plaintiff, at the time they were made, was attempting to collect. But after more mature reflection he has reached a different conclusion. The testimony was not subject to the objection interposed to it. As said in Gibbs v. Wright, 14 Ala. 467: “An offer to pay a sum of money, in order to purchase one’s peace and adjust a pending or threatened litigation, if not acceded to, cannot with propriety be called an admission, which can only be predicated of existing facts — it is an unaccepted proposition — a matter in teasance, which rather negatives the present existence [309] of what is proposed to be done. If such an offer carry on its face the character of a peace offering, it is privileged, and cannot be nsed against the party making it. But where distinct facts are admitted by the proposition, or pending the negotiation, they stand upon a different ground, and for these the privilege cannot be invoked.” We think the principle last quoted applicable and must govern. Among the numerous cases cited to support this principle is Church v. Steel’s Heirs, A. K. Marsh. 329. It is there said: “For whilst, owing to the tendency of such evidence to prevent compromises, propositions are not allowed to be introduced; yet, as to facilitate such agreements, it is not essential that the propositions should he accompanied with any admissions, such admissions, if made, ought to be received as competent evidence.” In Hartford Bridge Co. v. Granger, 4 Conn. 148. also oil ed, it is said: “It is never the intendment of the law to shut out the truth; hut to repel any inference, which may arise from a proposition made, not Avith design to admit the existence of a fact, but merely to buy one’s peace. If an admission, however, is made, because it is a fact, the evidence to prove it is competent, whatever motive may have prompted to the declaration. In illustration of this remark, it may be observed, that if A. offers to B. ten pounds, in satisfaction of his claim of an hundred pounds, merely to prevent a suit, or purchase tranquility; this implies no admission that any sum is due; and therefore, testimony to prove the fact must be rejected, because it evinces nothing concerning the merits of the controversy. But if A. admit a particular item in an account, or any other fact, meaning to make the admission as being true, this is good evidence, although the object of the conversation was to compromise an existing controversy.” Other quotations might be indulged from the case cited by the learned judge in Gibbs v. Wright, supra, but these will suffice to show the principle upon which the point under consideration is ruled. For additional cases, not cited, involving this principle, see: Bartlett v. Tarbow, 1 Abb. Dec. (N. Y.) 120; Mar [310] vin v. Richmond, 3 Denio 58; Snow v. Batchelder, 8 Cush. 513; Durgin v. Somers, 117 Mass. 55; Garner v. Myrick, 30 Miss. 448; Sailor v. Hertzogg, 2 Pa. 182. Tbe contract under which the plaintiff installed the heating apparatus did not in terms require the boiler and mains to be covered with asbestos. It is true it did require the apparatus to be of the best material and to be put up in the most thorough and workman-like manner, and imposed the obligation upon the plaintiff to provide everything requisite and necessary to the working and completion of the apparatus, whether such separate items were mentioned in the contract or not. Black, a witness for defendant, testified as an expert, to having examined the apparatus and gave it as his opinion that it was not properly put in and would not heat the building. In support of this opinion he said, among other things, “that if the boiler and mains had been covered with asbestos the loss of the radiation from these would have been prevented and made it a better job.” On cross-examination plaintiff was permitted to ask him, against defendant’s objection, “whether or not it is customary to cover the boiler and pipes with asbestos when it was not called for in the contract?” In answer to this question his reply was that it was not customary unless it was specified in the contract. In this there was no error. If, as the answer indicated, it was not customary to cover the pipes and boiler with asbestos, this was a circumstance which the plaintiff had a right to have considered by the jury in weighing the value of his opinion. The question propounded by defendant to his witness, Mrs. Bloodivorth, to which an objection was sustained, was certainly bad in so far as it asked her to “state whether or not you can continue to rent said hotel?” without reference to whether the other alternative stated in the question was legal. If the latter-part of the question be conceded to be unobjectionable the court was under no duty to separate the question. Nor is it of consequence that the objections interposed were general. There is obviously a difference, where as here, a part of the question is objectionable and where an objectionable part of an answer responsive to a legal question is sought [311] to be excluded. In the latter case a general objection will not avail to pnt the court in error upon the same principle announced above.—Davis v. The State, 131 Ala. 10. It is true the testimony offered by defendant tended to show that the work was not done in a workman-like manner, which, however, was disputed. It is also true that it is shown that Fairburn did a greater part of the work. But all this did not make it relevant or proper to enter upon the inquiry whether Fairburn got drunk and was confined in the calaboose. These facts, if true, did not in the remotest degree tend to show that he was an incompetent mechanic. The court admitted testimony of his being frequently under the influence of whisky while actually engaged in the performance of the work. This certainly marks the limit to which the court was authorized to go. The other question propounded to defendant as a witness clearly called for a conclusion or an opinion, and we may add, for his construction of the contract. Besides, he shows by his own testimony, that he was incompetent from a lack of knowledge of what was necessary to make the apparatus a proper instrumentality to serve the purpose it was intended, to express the opinion or conclusion he was asked to state. It is also clear there was no error in refusing to allow the catalogue to be introduced in evidence. In view of the effort on the part of defendant to show by testimony that the use of the house as a hotel was impaired by reason of being insufficiently heated, we cannot affirm that the argument of plaintiff’s counsel objected to, was not legitimate. In conclusion it may not be amiss to say that the complaint contains the common counts, and even though the plaintiff may not have performed the contract, yet, if the defendant accepted the work and it was of benefit to him, a recovery may be had for the value of the work and materials furnished.—Davis v. Badders, 95 Ala. 348; Thomas v. Ellis, 4 Ala. 108. However, as to the value of the work and materials furnished and whether of benefit to defendant, the evidence was in conflict. Reversed and remanded.