Morawetz v. McGovern

Cassoday, J. 1. It is claimed that the undisputed evidence shows that the plaintiff was to construct an ice-box that would be dry on the inside in use, but that this was not. There was evidence tending to show that it was dry when first constructed and in the possession and use of the defendant, and then had no holes in the zinc, but- that a week or two subsequently it was examined, and found to leak and have holes in the zinc, apparently made with a sharp instrument like a knife, and others just as though they had been punched through with a punch or scratch, or something like that. There being evidence to sustain the verdict, it is unavailing to argue that the preponderance of the evidence is against it. 2. Error is assigned because the court charged the jury that, “ so far as the philosophy of the different elements is concerned, it is not necessary that I should charge you that cold air always displaces warm air. We all know that, and it does not require me to charge you, as a question of law, that that is the fact.” In the same connection the court charged the jury that' “ the question is whether these two [315] elements have been brought into such a relation or subjection to each other as that the box constructed by the plaintiff for the defendant was sufficiently supplied with cold air, which was produced from the ice in the top of the box, and to obtain the result which was desired on the part of the plaintiff and which the defendant expected; and those are the propositions you must solve from the testimony in this case,— whether this ice-box was so constructed as that it would answer the purpose for wffiich it was constructed by a proper use of it in the business in which the defendant was engaged.” This fairly submitted the question of fact at issue to the jury. Ve perceive no reason why they should be misled by it. 8. Error is assigned because the court charged the jury that “ if you find the box was defective, if, after discovering that defect, the defendant, within a reasonable time, tendered the box back to the plaintiff,, and the plaintiff refused to receive it, then the defendant would be entitled to recover the damages that he sustained in consequence of plaintiff’s non-conformance with the contract, and those damages would be the price paid.” Had the jury allowed the defendant anything by way of recoupment or counterclaim, the question here sought to be raised might have been pertinent. But, as the jury entirely disallowed any and all claim of the defendant for damages on his counterclaim, it is obvious that the jury were not misled nor the defendant prejudiced by this charge limiting the amount of such damages. 4. The plaintiff testified on direct examination, in effect, that the work on this ice-box was done in a good, substantial, and workmanlike manner,— the same as he did on ^.11 others; and on cross-examination that he had made a box for Dykens. He was then asked “ if he ever got his pay, or asked for it.” This question was properly excluded. Tt was entirely collateral to the issue on trial. [316] 5. One of the defendant’s witnesses, on his direct examination, and after having testified about the ice-box in question, stated that the plaintiff made an ice-box for him. He was then asked: “ How did that turn out?” The exclusion of this question was proper for the same reason as the other. Besides, there was no evidence of any similarity in such boxes, except that the work was done in a good, substantial, and workmanlike manner on all. This might all be true, and still the two boxes be constructed upon entirely different theories. 6. Error is assigned because the verdict includes interest on the plaintiff’s claim from the time of doing the work, which was in the latter part of May, 1885; and the charge authorized the inclusion of such interest in case the jury found for the plaintiff on all the issues. The precise point made is that the claim for extra work was for unliquidated damages, upon which no interest could be allowed. But there is evidence on the part of the plaintiff tending to show that, about the time of the completion of the work, he figured the lumber and the work, and that the defendant expressed himself satisfied with the lumber and the icebox; that June 4, 1885, the plaintiff made out the bill upon which the suit was brought, and gave the defendant a copy of it, and the latter promised to pay it the next Saturday, June 6, 1885. If this was so, the plaintiff was entitled to interest from that time. This is substantially what was allowed. By the Court.— The judgment of the county court is affirmed.