Hollister v. Brown

Christianoy J. Had the defendant below objected to the writing, and the evidence of BroAvn in connection therewith, — offered for the purpose of showing that the amount and dimensions of the wall used by the defendant had been agreed upon by the parties, — on the ground that the paper was not signed by the defendant, and did not purport to speak for him; that it could only be used by the witness as a memorandum, or that it showed upon its face that it was merely the claim of the plaintiff's, presented or to be presented to the contemplated arbitrators, and was therefore repugnant to the offer, which was to show the agreement as an independent fact, etc., “without reference to any adjustment or settlement offered by arbitrators or otherwise,” a very different question- would have been presented from that arising upon this record. No objection was made to the offered evidence, upon any such ground. The Objection was based expressly upon the single and specific ground “that such statement or proposition” (meaning, as we understand the objection, the agreement or admission of the defendant in reference to measurement, as testified to by plaintiff Brown), “ was, as appears by the testimony of said witness, made for the purpose of a settlement of controversies then existing between the said parties, and which had since become the subject of this suit.” This being the sole ground of the objection, all others which might have been urged, must be considered as waived. [167] We do not think the objection can be sustained upon this ground. The admission of the defendant as to the measurement of the wall, as sworn to by Brown, would seem to have been made because it was true, and not with the object or hope of buying peace, or procuring an amicable settlement by admitting more than the facts would warrant. In fact there does not appear to have been any expectation of settling the differences between them by the act and agreement of the parties alone, at the time the admission was made in connection with the proposition to submit to arbitration; and the same admission, according to to the testimony of Brown, had been made before by the defendant, as an independent fact, without reference to any arbitration. There Is nothing therefore to indicate that the admission was made upon any condition, tacit or express, that it should not be proved against the defendant, if no settlement or compromise should be made. It was not claimed that any valid agreement was made between the parties to submit their differences to arbitration. But the plaintiffs were allowed, against defendant’s objection, to show .the abstract fact that the arbitrators verbally agreed upon, did make a finding as to the price, without stating the amount found by them. This fact was wholly irrelevant and the Court ought to haye excluded it. But we are unable to discover how the proof of this isolated fact, having no connection with the controversy, nor calculated in any way to affect the minds of the jury, could possibly have operated to the prejudice of the defendant. Indeed, we think it quite evident that he could not have been injured by it, and that the judgment should not therefore be reversed on this ground. Nor could the defendant have been prejudiced by the evidence introduced by the plaintiffs, under the claim of rebutting evidence, showing that the charge of three dollars for the use of a pump, embraced in the defendant’s claim [168] of set off, and allowed by the plaintiffs, was for the use of a pump which stood on defendant’s land, and used by the plaintiffs and their workmen to draw water for the building of the store of the plaintiffs and the division wall. The defendant’s claim of set off for the use of his pump, and for stone and water lime furnished to the plaintiffs, amounting in all to $54 50, had already been admitted by the plaintiffs on the trial to be correct, and was allowed Jay them in the set off. Whether therefore this evidence was admissible, for the mere purpose of identifying the pump referred to, so as to prevent any future claim for the use of it, or whether it was wholly immaterial or irrelevant, it is unnecessary to decide; since, from the very nature of the case and of the evidence, the defendant could no more have been injured by its introduction, than by evidence of the color of his coat, or the state of the weather on the day of his birth. The admission of the evidence on the part of the plaintiffs, showing that, at the time of the delivery of the stone and the water lime, by the defendant, he stated that he would turn out the stone in payment for his half of the stone wall, presents a question of less obvious solution. Plaintiff Brown in his testimony in chief, had testified that the contract was to pay for so much of the wall as the defendant should use, and also, to the admission by the defendant of the measurement claimed by the plaintiffs, of the wall as used by the defendant. The defendant had testified that by the original contract he was to pay only for half the cost of so much of the wall as he should use above the ground; but that he afterward took some dirt out of the cellar of his building, and then agreed further to pay the plaintiffs, one-half the cost of all the wall he should use below the first floor of his building. To rebut this evidence of the defendant, plaintiff Brown was recalled and testified that but one contract wras made, and that the terms were not as stated by the defendant. [169] Plaintiffs then further to rebut the defendant’s testimony offered to prove by Brown that at the time of the delivery of the stone and the water lime, defendant stated that he would turn out the stone for his half of the stone wall. We are inclined to think this evidence might have some slight tendency to rebut that of the defendant (showing a new and different contract from that sworn to by plaintiffs), as it might tend to show recognition by the defendant of an obligation to pay the cost of half of all the wall along which his building should extend as claimed by the plaintiffs. This tendency it is true, would be slight; as he ■ might have intended by “his half of the stone wall,” only the half of that along which his cellar was dug. But it would be for the jury to judge of the extent of his meaning and the weight of the rebutting evidence. This evidence was not objectionable on the ground that it should have been introduced by the plaintiffs on their Opening; as they relied upon the contract sworn to by the plaintiff Brown, and the admission of the defendant of the measurement, and did not rely, either in their opening or at any time, upon the promise of the defendant to turn out the stone in payment, as a ground of recovery. The defendant offered to prove that after the commencement of the suit he tendered to the plaintiffs the sum of one hundred and eighty-five dollars as damages and costs of suit then incurred by the plaintiffs. This was objected to by the plaintiffs and excluded by the Court, on the ground that the suit was brought for the recovery of damages for a breach of contract, and not for a sum certain or which might be reduced to a certainty by calculation. Had there been any error in any of the other rulings of the Court for which a new trial should be granted, it would be proper to consider this question of tender which might again arise upon such new trial. But as we have [170] already determined that no new trial is to be granted on any of the other errors assigned; the case appearing to have been fairly tried, and the jury having found a verdict for the plaintiff for two hundred and sixty eight 83-100 dollars damages beside the costs, — a much larger sum than was tendered by the defendant; it is manifest that the rejection of this evidence of tender of a less sum, whether admissible or not when offered, could not possibly have prejudiced the defendant. The proof of such tender could have had no legitimate tendency to increase or lessen the amount of damages; which the jury have found to be much larger than the sum tendered. If, then, the tender had been proved, the defendant could have derived no benefit from it. The question of tender, therefore, does not properly arise; and we express no opinion upon it. The judgment must be affirmed with costs to the defendants in error. The other Justices concurred.