Louisville, N.A.&C. Ry. Co. v. Hubbard

• Decision Date: 27 November 1888
• Citation: 18 N.E. 611,116 Ind. 193
• Parties: Louisville, N. A. & C. Ry. Co. v. Hubbard.
• Court: Indiana Supreme Court

116 Ind. 193

18 N.E. 611

Louisville, N. A. & C. Ry. Co.

v.Hubbard.

Supreme Court of Indiana.

November 27, 1888.

Appeal from circuit court, Carroll county; John H. Gould, Judge.

Action by Erastus W. Hubbard against the Louisville, New Albany & Chicago Railway Company, to recover compensation for services rendered as custodian of the money and securities of the railway company. Judgment for plaintiff, and defendant appeals.

George W. Friedley, George W. Easley, and William H. Russell, for appellant. Sims, Eldridge & Sims, for appellee.

Elliott, J.

The first paragraph of the appellee's complaint was, by the instructions of the trial court, withdrawn from the jury, and the case therefore stands upon the second paragraph. That paragraph is a demand of compensation for services performed for the appellant, at its request, by the appellee. The cause had been at issue for four months when the appellant asked leave to file an amended answer. We cannot say from the record that the trial court abused its discretion in refusing permission to open the issues. It devolves upon the party who assails the refusal of the court to open the issues to admit the filing of additional pleadings to affirmatively show an abuse of discretion, and, as none is here satisfactorily shown, we must uphold the decision of the trial court. The court permitted the appellee to read in evidence the deposition of W. W. Hubbard, who was shown to have been in court during the trial, and until noon of the day in which his deposition was read. It is not shown, however, that he was “produced in court” at the time the deposition was read to the jury. For anything that appears, it may not have been in the power of the appellee to produce him in court, and, as the presumption is in favor of the ruling of the trial court, we must hold that error does not affirmatively appear. The record shows that Hubbard lived in Marion county, and it was therefore proper to take and to read his deposition. The appellee could not have compelled him to remain in attendance, and consequently could not be deprived of his testimony, unless some wrong or fault on his part was shown, and nothing of that kind is disclosed by the record. Where a deposition is properly taken, it may be read in evidence, unless “the witness is produced in court,” for so the statute expressly declares. Rev. St. 1881, § 425. The court may refuse an instruction if satisfied that it is erroneous, although it may have previously indicated that it would be given. City v. Dykeman, 17 N. E. Rep. 587. We think it clear that a court, after the discovery of an error, may justly correct it. Of course, an instruction once approved should not be withdrawn, unless there is a valid and substantial reason for withdrawing it; but nevertheless an error may be rectified at any time before the verdict is returned. Farley v. State, 57 Ind. 331. Where a plaintiff renders services at the request of the defendant his right to compensation is not affected by a contract with a third person, of which he had no knowledge. Nor is his right to compensation affected by the fact that the third person received the benefit, and not the defendant. It was therefore proper for the court to refuse the instruction asked by the appellant concerning the contract between Yeoman and the appellant, for that contract did not impair the rights of the appellee. The evidence shows that the services for which the appellee asks compensation were rendered upon the request of the appellant. There is, consequently, no question as to the right of a mere trustee to recover compensation from the creator of a trust. The case is the simple and ordinary one of a plaintiff rendering service at the instance of a defendant without any specific compensation being agreed upon. As every one knows, the law implies a promise on the part of the defendant in such cases to pay the plaintiff the reasonable value of his services. The second instruction asked by the appellant was properly refused, because the claim of the plaintiff was not for services rendered under the contract with Yeoman, dated February 28, 1880, but for services under a different contract. A receipt...