Garr v. Cranney

ROLAPP, District Judge, after stating the facts, delivered the opinion of the court.. The errors assigned upon this appeal are (1) the admission of certain evidence; (2) the refusal of.the court to give the requested instructions; and (3) the insufficiency of the evidence to justify the verdict. We shall first consider the alleged errors relating to the admission of evidence: Upon the trial, one Hyrum Hulse, a witness for plaintiff, upon his direct examination testified, among other things, that the deceased, after making the statement to plaintiff 1 that “he would pay her for all she had ever done or would do for him,” further asserted that “he would make out a will to her and her children.” While no objection was made to this testimony at the time it was given, yet, after the close of the cross-examination, counsel for the appellant moved to strike out certain testimony of the witness relating to this and other promises made by deceased to plaintiff, on the ground that the action is upon the common count, and not upon express contract. This motion was denied by the court, -and we think properly. In the first place the objection was not made seasonably, and, besides, the objection is untenable, because there was nothing in the testimony that tended to show an express contract. The assertion by 2 deceased that he would make a will in favor of plaintiff and her children was wholly consistent with, and yet foreign to, the other statement made; and, while the stater ment was immaterial, yet it did not in any way tend to establish an express contract. In no case is an express contract established by a mere statement that one person will pay another for what he will do for him. Before there can be an express contract as to services, it is necessary that both the character of the services and the price to be paid shall be [201] agreed upon between tbe parties. In other words, an express contract is one whose terms are fully declared by the parties at the time they enter into it. 2 Bl. Comm., 443. When such terms are not declared, it becomes an implied contract. Hertzog v. Hertzog, 29 Pa. 465. Appellant also contends that the court erred in refusing to strike out the testimony of one of plaintiff’s witnesses as to the value of the services rendered. While it is 3 true that the evidence is not very clear as to the qualifications possessed by the witness which entitled him to testify as an expert upon the value of the services rendered and the goods furnished, yet in any case where there is some evidence tending to establish such qualifications, and the witness is considered competent by the trial judge, and in the absence of a showing that the court’s discretion has been abused, we will not, upon appeal, reverse the decision of the trial court in this respect. Whether a witness is qualified to testify as an expert is. a question of fact for the presiding judge, and, if supported by any evidence, will not be reversed on appeal. Rog. Exp. Test., sec. 22; 2 Jones, Ev., 371; State v. Cole, 63 Iowa 695, 17 N. W. 183. Appellant further contends that the whole of plaintiff’s own testimony should have been stricken out, and that the refusal of the court to do so was error. The only testimony 4 given by plaintiff was to the effect that during the lifetime of deceased she supported herself by raising and selling chickens and selling eggs and milk. She further testified that the deceased knew all about these matters. The motion to strike out was upon the ground that this testimony related to a matter of fact equally within the knowledge of deceased and the witness. While we think it a very dangerous practice to permit an adverse party to testify in any case defended by the representative of the deceased person, yet in this case we think that, even if erroneously admitted, no prejudice resulted to defendant from the presence of this testimony in the record. It related to a matter which not [202] even remotely affected tbe issues before the court, and doubtless, if objection had been made to its materiality and relevancy, it would have been promptly stricken from the record. Complaint is also made that error was committed in not confining the testimony to facts subsequent to the thirty-first day of October, 18916, the remainder of plaintiff’s 5 cause of action being barred by the statute of limitations, and also that the court refused to give defendant’s request No. 1, above stated, relating to the same subject-matter. While we observe nothing in the record relating to events happening prior to Ooctober 31, 1896, which could in any way prejudice defendant, yet we think that any possible errors which may have occurred in this respect were cured by the verdict, which in express terms limits the recovery to the period between October 31, 1896, and October 31,-1900. So far as the refusal of the court to give the instructions requested by defendant is concerned, we can not, upon this appeal, review that action, because the record fails 6 to disclose what instructions were in fact given; and, in the absence of such information, we must presume that the court below did its duty, and gave general instructions correctly and fully covering the entire law of the case, including so much of the statements of law as was properly stated in the refused requests. Lower v. Franks, 115 Ind. 334, 17 N. E. 630. Nor can we consider the assignment of error that the evidence was insufficient to justify the verdict. We have repeatedly held that where there is some evidence to support 7 a verdict or the findings of the court, or where the evidence is conflicting, we will not disturb such verdict or set aside such finding. To this doctrine we still adhere. Slater v. Cragan, 7 Utah 412, 27 Pac. 4. Appellant also raises the point that the court erred in refusing to strike from the memorandum of costs the items of witness’ fees therein mentioned. In this case the 8 cost bill simply stated the names of the witnesses and [203] their places of residence, in addition to which the figure “3” was set opposite each name, under a column designated “Days,” and the figure “6” under a eolunm designated “Mileage,” together with the total amount claimed by each witness. The memorandum contained no information which advised the adverse party as to what “days” and “mileage” these words had reference. Such cost bill is. wholly insufficient. With the latitude given by the laws of this State, permitting a party, within reasonable limits, to tax costs for witnesses subpoenaed by him in good faith, although not sworn 9 in the case, and with the further permission granted to a party to serve his own subpoena and file the return at any time he chooses, we think it only fair to the adverse party that at least a sufficient showing should be made upon the face of the cost bill to enable such party to ascertain therefrom who the witnesses are, where they reside, where they were subpoenaed, how many days they claim to have been in attendance upon court, and the number of miles actually traveled by them in obedience to a subpoena or the request of the successful party. The reason for such strict compliance with this rule is obvious. Section 994, Revised Statutes, provides that “every witness legally required to attend upon the district court or a grand jury is entitled to one dollar and fifty cents for each day’s attendance, and twenty cents for each mile actually and necessarily traveled, in going only.” This does not mean that a mere bystander used as a witness can receive mileage from his place of residence, or that a witness is entitled to per diem while coming to or going from court. It means just what is says — that he. shall receive per diem for each day’s attendance, and mileage for each mile actually and necessarily traveled, in going only. If a bystander be called as a witness, and he traveled thirty miles to return to his place of residence, that fact would not entitle a successful party to tax his mileage against his adversary; and as no statute requires the returned subpoena to be filed within the time limited for objections to cost bills, [204] and as in the majority of cases tbe subpoenas are served by the parties or tbeir friends, we think the cost bill should, upon its face, fully state the facts, so that if they are not true they may be controverted by the adverse party within the time allowed by law. There is nothing in the cost bill in this case which shows where the witnesses were subpoenaed, if at all; nor how many days each witness, was in actual attendance upon the court, or the distance which such witness actually and necessarily traveled in going only. It is quite possible that these witnesses may have been mere bystanders at the trial; they may have counted and taxed traveling fees both ways, or the distance traveled may have been estimated from some other point than where they resided or were subpoenaed, or they may have computed a distance which they either not actually or not necessarily traveled. Cole v. Ducheneau, 13 Utah 42, 44 Pac. 92. We think the judgment of the lower court as to the main cause should be affirmed, with costs against appellant, except as herein otherwise stated, and, further, that the cause should be remanded to the lower court, with instructions to strike from the cost bill all the witness fees therein contained. It is so ordered. BASKIN and BAPTCH, JJ., concur.