Burton v. Variety Iron Works

Moore, J. The amount in dispute in this case is $54.34. It was the claim of the plaintiff that he did extra work upon a building at Port Huron, by putting on roof flashings, to the amount for which he recovered judgment, for which defendant was to pay. It is the contention of the defendant that it was no part of -its contract to do this work; that it never ordered the work done, and never authorized it to be done. The circuit judge thought there was a question of fact involved, which should be submitted to the jury, and he did submit it to them. It is now claimed that the judge should have directed a verdict in favor of defendant. It is claimed by the plaintiff that the record does not purport to contain the substance of all the evidence offered in the case; that, under such circumstances, we cannot presume there was no testimony justifying the charge of [141] the judge, — citing Botsford v. Chase, 108 Mich. 432 (66 N. W. 325); Cappon & Bertsch Leather Co. v. Preston Nat. Bank, 114 Mich. 263 (72 N. W. 180); Van Werden v. Winslow, 117 Mich. 564 (76 N. W. 87). This would be the rule if the fact was as stated; but the record shows that it contains substantially all of the testimony bearing upon the disputed claim. The defendant insists that there is no competent evidence to show that it was any part of its contract to do the work in dispute; that the testimony of plaintiff bearing upon that subject was hearsay. No objection was made to the admission of the testimony, nor was any motion made to strike it out. If it had been objected to in the court below, and excluded, because it was hearsay, it is quite possible that the testimony might have been supplied by competent evidence. If the objection was to he made, it should have been made in the trial court. As to the defense which is urged, — that there was no testimony tending to show defendant had ordered the work done or authorized it to be done, — we think, putting the most favorable construction possible upon the testimony offered by the plaintiff, that it does not show that the defendant authorized the work to be done. On the contrary, we think that the correspondence shows that, when defendant’s attention was called to this work, it declined to authorize the plaintiff to do it on its behalf. We think that a verdict should have been directed in favor of defendant. The judgment is reversed, and a new trial ordered. The other Justices concurred.