McPherson v. Rockwell

LyoN, J; 1.' We are inclined to think that the offer of the contract and specifications in evidence, by the defendant, while the plaintiff was being cross-examined, was premature, and hence, was properly rejected at that stage of the trial. But were it error to reject them in the first instance,- their -subse quent admission cured it. Barton v. Kane, 17 Wis., 37; Barringer v. The People, 14 N. Y., 593. 2. It is quite unnecessary to determine whether the motion for a nonsuit should have been granted or denied,-for the testimony tends to. show that the. materials and labor for which this action was brought were not included, in the.-written contract. It is immaterial at what stage in the trial such testimony was introduced. It is settled in this court by -repeated decisions, that although there is no testimony which would sustain a.verdict for the plaintiff when the motion for a nonsuit is denied, the judgment will not be reversed therefor, if such testimony be afterwards supplied by either party. Dodge v. McDonnell, 14 Wis., 553; Barton v. Kane, supra; Martin v. The W. U. R. R. Co., 23 id., 437; May v. The Buckeye Mutual Ins.Co., 25 id., 291; Harper v. The City of Milwaukee, 30 id., 365. 3. The question which was propounded to the plaintiff in his own behalf relative to the release of his liability.for the price of the stone, unmistakably suggested to him the desired answer. It was therefore leading. 1 Greenl. Ev., § 434. But the court may, in its sound discretion, allow such questions, and this court .has .held that it will not reversea judgment merely be [163] cause the court below allowed them. Barton v. Kane, 17 Wis., 37. In that case DixoN, C. J., says: “ Whether leading questions shall, be permitted, rests in the sound discretion of the court in which the trial is had, and decisions in respect to them are not the subject of exception.” (p. 42.) That there are adjudications by the courts of some of the states, which hold a different rule, must be conceded. Turney v. The State, 8 Smedes & Mar., 104; The People v. Mather, 4 Wend., 229, But the rule adopted.by this, court in Barton v. Kane, is sustained by courts of high authority. See Stratford v. Sanford, 9 Conn., 275; Moody v. Rowell, 17 Pick., 490. See also the dissenting opinion of CLAYTON, J., in Turney v. The State, supra (p. 124). It should be observed on this subject that the interrogatories allowed in Barton v. Kane could not have prejudiced the defendant, an&.hence the objections thereto were purely technical. Although this circumstance is not commented on in the opinion, yet the Remark of the learned chief justice, above quoted, must be understood to have been made with reference to the case before him and like, cases, and was not intended to apply to a case where there had been .a clear abuse of discretion. It is the constant practice of this court, on appeal, to review discretionary orders of various kinds, and to reverse them for abuse of discretion. Orders granting and refusing new trials in certain cases are familiar illustrations. Such orders are frequently discretionary, but, even when so, they will be reversed on appeal if it appear that the court below transcended the limits of sound discretion in making them. If a leading question be improperly allowed against the objection of the appellant (made in proper form), and to his injury, it is an abuse of discretion; and if it appears from the record that such injury resulted therefrom, no good reason is perceived why it should not be held that the error is fatal to the judgment. Furthermore, where the answer, in .such cases, is precisely that suggested by the objectionable question, we are inclined to hold the presumption to be that the appellant is thereby injured, un [164] less there are circumstances in tbe case'which rebut such presumption. In the present case the witness made the answer suggested by the question, and, but for a circumstance disclosed in the record, the allowance of the question would necessarily work a reversal of the judgment. The plaintiff, in his verified reply, alleged the same facts to which he testified in answer to the objectionable question.' It is quite apparent from this, that before such question was put to him, the plaintiff.had in his mind the facts to which he testified, and hence,’ that his testimony would have been the same had it been elicited by proper interrogatories. This, we think, rebuts the presumption which would otherwise exist, that the defendant was injured by the allowance of the question. 4. As to the failure of the defendant to procure the certificate of the superintendent named in the contract, of the value of the materials and labor in controversy: If any such certificate is required by the contract (which may well be doubted), we are of the opinion that the acceptance of the house and the payment of the contract price therefor, by the defendant, without requiring any such certificate, was a waiver of that provision of the contract. It was substantially so held in Bannister v. Patty, 35 Wis., 215. Indeed it does not appear that the provision was ever acted upon by the parties, and we find defendant claiming damages in this action for defective work and for changes of plans favorable to the plaintiff, both within the provision, without any reference whatever to any certificate or award of the superintendent. 5. There was testimony sufficient to support the verdict, and we fail to find any error in the rulings of the court on the trial .of the action. Hence there is no error in the refusal of the court to set aside the verdict and grant a new trial. It follows from the foregoing views that the judgment of the circuit court must be affirmed. By the• Court.1— Judgment affirmed.