Atchison v. McKinnie

Mr. Justice Vickers delivered the opinion of the court: In the trial court defendant admitted that plaintiff was entitled to a judgment for $157 balance due on the $1200 contract and also $35 for the advertising drawings: At the close of all the evidence defendant requested the court to direct a verdict in favor of plaintiff for $192. This request was refused, and that ruling is here assigned as error by appellants. On the trial defendant contended that all the work performed by plaintiff was under the written contract, and that $1200 was to be in full satisfaction of that contract. This theory was supported by the evidence of Mc-Kinnie, who testified that plaintiff told him that there would be no extra .charge by reason of the construction of the 27-apartment building instead of the 24-apartment building originally planned. On the other hand, plaintiff contended that the erection of the original building was abandoned after the additional forty feet of ground had been acquired, and that McKinnie requested the plaintiff to prepare other drawings and specifications for the larger building. Plaintiff testified that the original drawings were wholly worthless, and accordingly he proceeded to prepare new designs, plans and specifications for a 27-apartment building. He testified- that during the preparation of the last set of drawings he was in consultation, daily,-with McKinnie, and that numerous changes and modifications were made from time to time, until they were finally completed and accepted by McKinnie. The two sets of drawings were introduced in evidence and the trial judge has certified the originals to this court for inspection. It will thus be seen that there was a sharp conflict between the testimony of the two parties to the transaction. The testimony of each party to the transaction was corroborated by other testimony. In this state of the proof the trial court properly submitted the cause to the jury, and no error was committed in refusing the motion for a directed verdict, It is urged that the court erred in giving the jury the following instruction: “If the jury believe, from the evidence, that the building represented by the first drawings offered in evidence was never erected and that the work on the building under said first drawings was abandoned, and that the defendant directed and engaged the plaintiff to draw other and different plans, specifications and details for a building larger than represented by the first plans, and that the plaintiff, in accordance with such direction and engagement, did draw other and different plans, specifications and details not contemplated in the written contract, and that no price or sum was mentioned as compensation to which plaintiff should be entitled, then you are instructed that the plaintiff would be entitled to the customary, usual and reasonable fees charged b) architects in this community for such work.” One objection pointed out by appellants in their brief to this instruction is, that the first clause of the instruction, which refers to the “first drawings offered in evidence,” was “equivalent to a direction by the court to the jury that the so-called first plans were completed, and that they fully represented all the architect was to do concerning the building contemplated in^the written contract.” This criticism has no merit. There were two sets of drawings in evidence, and they were referred to throughout the trial as the first and second plans, so as to distinguish them. The first set of drawings was not completed at the time the determination to erect a different building was reached. The language employed in the instruction to which this objection goes does not tell the jury that the plans were complete, nor is such an inference to be drawn from the reference to them as the “first drawings offered in evidence.” The word “drawings” means a representation of objects made with a point, such as a pen, pencil or crayon, and may be applied to an incompleted sketch as well as to finished plans. This objection is hypercritical. Appellants urge other objections to this instruction, which we have considered, but we are unable to agree that the instruction is open to any of the objections made to it. The method of discussing the instruction pursued by appellants makes it difficult to consider their objections without going too much into a critical analysis of the language of the instruction. Appellants have separated the instruction into different clauses and pointed out their objections to the several clauses. Instructions are to be read as a whole and considered in the light of the evidence and the subject matter of the lawsuit, and are not to be tested by resolving them into their various elements and then attacking each component part separately, as appellants seem to have attempted in this case. On the cross-examination of Dr. McKinnie, appellee’s attorney asked him if he had not been connected with the insurance business and if he had not gone away because the sheriff was after him. No objection was made to this question and no ruling of the court 'was made and no exception preserved. Asking a question which is not relevant or proper, such as the one put by counsel in this case to McKinnie, merely for the purpose of embarrassing the witness or to cause the jury to draw some unfavorable inferences against the witness, is, in the language of the Appellate Court in this case, “discreditable to the administration of justice.” Such practices should not be permitted, and we may well assume that had an objection been made the trial court would have promptly sustained it. Other questions argued by the appellants are settled adversely to them by the judgment of the Appellate Court. Finding no reversible error the judgment of the Appellate Court is affirmed. Judgment affirmed.