Campbell v. Russell

• Decision Date: 31 May 1885
• Citation: 139 Mass. 278,1 N.E. 345
• Parties: CAMPBELL v. RUSSELL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

139 Mass. 278

1 N.E. 345

CAMPBELL

v.RUSSELL.

Supreme Judicial Court of Massachusetts.

Filed May, 1885.

Nathan Morse and Charles T. Gallagher, for plaintiff.

E.P. Brown and T.M. Osborn, for defendant.

MORTON, C.J.

This is a suit to recover the balance due under a contract for building a house. The defendant contended that the work was done in an unskillful and unworkman-like manner. At the trial the plaintiff put in the report of an auditor in his favor. The auditor found that some of the floors had settled and were not level, but that the plaintiff was not responsible for their defects. The defendant offered to show that in a house similar to this, planned by the same architect, in which some of the timbers and spans were the same and some different from those in this house, the timbers had not sagged and the floors had not settled. The controversy between the parties related to the house built by the plaintiff, and not to another house. What happened to another house would not aid the jury, unless it was shown that the two houses were identical, and subject to the same forces and conditions. The court, therefore, rightly excluded the evidence. Hawks v. Charlemont, 110 Mass. 110;Com. v. Piper, 120 Mass. 185.

2. The auditor found that the extra work and alterations were of such a character as to render it impossible for the plaintiff to complete the building before the first day of January, 1882. At the trial the defendant asked the architect: “Were the extra work and alterations made in this building of such a character as to render it impossible for the plaintiff to complete it on or about January 1, 1885?” The court excluded this question, but ruled that the defendant might show what extra work and alterations had been done, and how long it would take to do the same; and the witness testified to such facts. The ruling was correct. The amount of extra work which had been done was in dispute. If the witness had been allowed to answer the loose and general questions put to him it would be impossible for the jury to know what extra work he had in his mind as the basis of his opinion. The court properly required that he should specify what he considered as extra work, and that he then might testify how long it would take to do it. He was thus permitted to answer the substance of the question, when put in a form which had no tendency to mislead. The defendant has no ground for exception.

3. The defendant asked a witness, who had examined...