Leffler v. Allard

Cochran, J., delivered the opinion of this court. The questions presented by this appeal arise on three bills of exceptions taken by the appellant, the 1st, to the ruling of the court for the admission of evidence proposed, but not introduced by the appellee; and the 2nd and 3rd, to its refusal to admit evidence offered by the appellant. It appears from the record, that the appellee, after offering evidence of the performance of a contract, for carpenter’s work, made by him with John Levi, and also of other work, then proved that he pointed out certain portions of the whole work done, which he claimed to be extra work, to William Q,. [552] Caldwell, who measured and furnished an account of the items pointed out, and of their value. The appellee then proposed to offer evidence, that the work specified in this account was extra, and not included by the contract. To this offer the appellant objected, and being overruled, he then excepted. The evidence, objected'to, does not appear to have been introduced, the appellee having proved, by other witnesses,- (he admission of Levi, that the account for all the work done was correct, and his promise to pay it. Under these circumstances, the point presented, by this exception is immaterial. We think, h-oWever, that the appellant’s objection was properly overruled, and that the appellee was entitled to prove, at that stage of the case, that the work pointed out by him to the measurer, was extra, and not included in that done under the contract. But evén if the ruling of the e'ourtwas erroneous, the appellant sustained no injury by it, as the appellee yielded to him the practical advantage of his objection, by withholding from the jury the evidence proposed. The appellant took his 2nd exception to the refusal of the court to admit the testimony of Moore, to show, from conversations between Levi and R. W. Raisin-, the consideration for which Levi executed the mortgage to Raisin, afterwards assigned by Raisin to the appellant. We think there was no error in refusing to- admit this evidence.The conversations between Levi and Raisin were subsequent to the performance of the work by the appellee,- and not in his presence. The declarations of Levi, in these conversations, were certainly not admi&ibie to defeat the appellee’s claim; and those of Raisin, showing that he claimed the fund attached in the hands of the appellant, are not less objectionableon the ground'of interest in the result of the suit. For the same reason the testimony of Raisin, the refusal to admit which' constitutes the ground of the 3rd exception, was properly rejected. In our opinion there was ho error in any of the rulings of the court, to which these exceptions were taken, and the judgment will therefore be affirmed. (Decided July 9th, 1862.) Judgment affirmed.