Lawrence v. LaCade

Smith, J. LaCade sued Lawrence and Louis Phillipe before a justice of the peace for work and labor done. Lawrence answered that LaCade did not perform the labor charged for upon any contract to work for defendant, and was never in the employ of the defendant, and that defendant does not owe plaintiff any part of the sum charged; that the defendant had a contract with Louis Phillipe for the making of wine on the place of defendant, from the vintage of defendant’s vineyard, for the consideration agreed upon between defendant and Louis Phillipe, by which said Louis Phillipe was to employ all the assistance he might require, and pay himself for all labor, etc., and expense necessary in making wine; and if Louis Phillipe hired the plaintiff he did so upon his contract as principal party thereto, and not as agent of Lawrence; that the wine is not yet made under said contract with said Louis Phillipe and this defendant, and nothing was due Louis Phillipe from Lawrence. Phillipe also answered, setting up his contract with Lawrence, substantially as Lawrence had stated it, admitting the hiring of LaCade by him, but alleging failure on the part of LaCade to perform his contract, and claiming recoupment for losses sustained. 1.Revivor: Widow and heirs. On motion of LaCade, the case was transferred to the-court of common pleas, under the provision of law creating that court. It was there tried before the court, without the intervention of a jury, and LaCade had judgment against both defendants. They appealed to the circuit court. Pending the appeal LaCade died, and his whole-estate, being worth less than $300, was, by order of the probate court, turned over to his widow and four minor-children. The cause was revived in their names and proceeded to trial with the result of a verdict and judgment for the plaintifls. The first error assigned is, allowing the action to be revived and prosecuted in the joint names of LaCade’s widow and children, when the latter had no interest. It is doubtless true that, under sec. 3, of Mansfield’s Digest, where-there is a widow, the estate is to be vested in her, and the-alternative, “ or children as the case may be,” has no place. But no objection was made to the order of revivor,, and the action of the court in the matter was not even made a ground of the motion for a new trial. It is in. vain to make such objections in this court for the first time. 2. Evidence: Deposition of dead witness. Again: It is urged that the court erred in admitting the deposition of LaCade taken in the county of his residence, and within thirty miles of the place of holding the court. But no motion was made before the commencement of the trial to suppress it. And such a motion, if it had been made, should have been denied, the witness being dead. Mansf. Dig., secs. 2955, 2921. 3. Transactions with deceased. But the court, did commit a substantial error, to the; prejudice of Lawrence, in rejecting so much of the testimony of Lawrence and Phillipe as showed transactions with the deceased. The rejected testimony tended to negative the existence of any partnership between the defendants, or other joint‘liability to the plaintiffs. The action was neither by nor against fiduciaries. In Bird v. Jones, 37 Ark., 200, this court, by English, C. J., said: ‘•None of the complainants sued as executor or administrator of Nathan Bird. Mrs. Bird sued in her own right as his widow, and the other complainants, claiming under him as heirs, sued in their own rights. The widow and heirs are not within the exceptions made by the proviso of the section (See. 2, Schedule to the Constitution of 187'4} to the general rule established by it.” See, also, McRae v. Holcomb, ante. But the exclusion of the evidence worked no injury toPhillipe, as it had no tendency to disprove his individual liability to pay for LaCade’s work. The judgment against Phillipe is. therefore affirmed, and the judgment against Lawrence is reversed, and as to. him a new trial is ordered.