Daniels v. Mosher

By the Court, Green J. It is insisted that the judgment of the Circuit Court ought to be reversed because the, justice erred, 1. In overruling the objection to the question put to the witnesses by the plaintiff below, whether, from the testimony, they should think the job was done in a good and workmanlike manner; and . [186] 2. In disallowing the value of the wood and timber sold by Mosher from the job, as a set off in favor of the defendant below. Another error is insisted upon, relative to the admission of jrarol testimony as to the understanding of the parties concerning the wood and timber on the land to bo cleared, which, according to the view I have taken of the question, is immaterial and does not require to be noticed. The first objection is well taken. The justice erred in receiving the testimony. The rule is too clear and well understood to require a reference to authorities, that a witness cannot be allowed to testify as to his opinion based upon the testimony he may have heard given in a cause, unless it be in a matter of skill, and the witness be an expert. But was this an error affecting the merits of the controversy. I think not. The justice certifies that he has returned all the evidence in the case. Several witnesses had testified that the job was well done, and there does not appear to me to have been any conflicting testimony upon that point. Some of the witnesses speak of seeing brands left on the land the size of a man’s foot, and of some heaps of brush burned out in the middle with short brands around the edges, and of a stick eight feet long and as large round as the crown of a hat; and one witness says that some of the brush might have been cut lower. If Daniels had been dissatisfied with the manner of the work, he had a most ample remedy under the contract, by giving Mosher notice to leave the job. This he did not do, nor is there any evidence that he expressed the least dissatisfaction while the work was progressing. It must therefore be regarded as having been done according to the contract and to his satisfaction. Besides, the deficiency if any, on the part of Mosher, was of too trifling a character to bring him within the hard provisions of the contract which would subject him to a forfeiture of one-third of the actual value of his labor. To suppose that Daniels intended by that provision of the contract to subject Mosher to such a forfeiture, in case of a failure in the minutest particular, would be to impute to him an intention to do the most flagrant and reprehensible injustice. Setting aside the testimony so erroneously admitted, the result must have been the same. This cannot therefore be regarded as an error affecting the merits of the ease. [187] By the contract, Mosher was to cut and. bum. all the timber and brush, except such as was suitable for rails, and such as was to he left for shade. Instead of burning it all on the ground, he cut a portion of it into fire-wood, and sold it. There is no evidence that Daniels made any objection to his doing so. Do these circumstances establish an im- • plied promise to pay the value of the timber ? I think not. The same result was effected by the disposition which was made of the timber,, as if it had been burned on the land; that is to say, the land was prepared for cultivation. There is no pretense that Daniels was injured by this departure from the letter of the contract; and if Mosher deri- • ved a benefit from it, that does not constitute any ground of claim by Daniels. Both the letter and spirit of the agreement preclude all idea of a claim by Daniels on account of the timber. The justice, therefore, did not err in disallowing this claim, as a set off, without reference to the parol evidence of an understanding between the parties that Mosher was to have the benefit of it, which was entirely immaterial. The judgment of the Circuit Court, affirming the judgment rendered by the justice, must he affirmed, with costs to the defendant in error.- Judgment affirmed.