Carroll v. Welch

• Decision Date: 01 January 1861
• Citation: 26 Tex. 147
• Parties: JACOB CARROLL v. SAMUEL WELCH.
• Court: Texas Supreme Court

26 Tex. 147

JACOB CARROLL

v.SAMUEL WELCH.

Supreme Court of Texas.

1861.

Where the captions of depositions identified the court, the cause and the witnesses, by their proper designations, referring to the interrogatories and crossinterrogatories, and stating that the witnesses were ““first duly sworn;” and the certificates at the conclusions of the depositions stated that the answers of the witnesses (naming them) “were taken, sworn to, and subscribed before me:” Held, to be in substantial compliance with the statute. [[15 Tex. 278;post, 685.]

It is error to exclude evidence of the quality or character of mechanical work for the reason that the witness is not himself a mechanic. The degree of weight to which such evidence is entitled, depends upon the intelligence and knowledge of the subject manifested by the witness in the course of his examination. [[[[

See this case for the principles of law, now applicable to cases of part performance of building and analogous contracts, entire in their character; and for the respective liabilities of the parties to each other upon an abandonment of their contract by either or both.

Appeal from Gonzales. Tried below before the Hon. Fielding Jones.

The appellee, Welch, brought this suit against Carroll, the appellant, to recover compensation for work done by the plaintiff in the erection of a dwelling house for the defendant. The petition set forth a special contract by which the defendant agreed to pay the plaintiff $1,200 to do the wood work of the building, and also sought a recovery upon a quantum meruit for extra work. The parties disagreed before the work was completed, and it was disputed as to which failed in the performance of their respective obligations under the contract, in consequence of which the building was left unfinished by the plaintiff.

The case turned chiefly upon the quality and value of the work done by the plaintiff, in regard to which the testimony was conflicting.

The plaintiff introduced certain depositions to which the defendant objected. 1st, that they were not duly certified by the officer taking them; 2d, that the commission, interrogatories, and cross-interrogatories had not been returned with the answers by the officer taking the depositions; 3d, that the officer who took the depositions was security for the plaintiff on his bond for costs; and 4th, that some two months had elapsed between the taking and return of the depositions. The mode in which the depositions were certified is sufficiently indicated in the synopsis. The objections were overruled, and the defendant excepted.

The defendant offered the testimony of two witnesses, Pilgrim and Evans, with regard to the quality of the work, and the plaintiff objected because it appeared from the testimony itself that the witnesses were not carpenters. The court sustained the objection, excluded the testimony, and the defendant excepted.

Verdict and judgment for plaintiff, for $813, and costs of suit; new trial refused, and defendant appealed. There were several other errors assigned, of which no notice is taken in the opinion.

Stewart & Mills, for appellant.

T. N. Waul, for appellee.

WHEELER, C. J.

We do not think the objections to the depositions of Dillard, Lewis and Askins, well taken. The certificate of the officer is a substantial compliance with the law. O. & W. Dig. art. 455. It is different...