Consaul v. Sheldon
| Decision Date | 21 September 1892 |
| Citation | 52 N.W. 1104,35 Neb. 247 |
| Parties | JACOB V. CONSAUL ET AL. v. FRANK L. SHELDON |
| Court | Nebraska Supreme Court |
ERROR to the district court for Lancaster county. Tried below before CHAPMAN, J.
AFFIRMED.
Charles O. Whedon, for plaintiffs in error.
Pound & Burr, contra.
Jacob V. Consaul, a contractor and builder, entered into two contracts with the defendant in error for the construction of two buildings. For the faithful performance of said contracts Consaul entered into two bonds, in the sum of $ 5,000 each, with Palmer Way, Charles C. Munson, and Zehrung & Henkle as sureties. The action is on these bonds. There was a verdict in the lower court in favor of Sheldon for $ 3,000, and a joint judgment was rendered thereon against all the defendants below for the amount found by the jury. The plaintiffs in error excepted, and brought the proceedings here for review upon numerous assignments of error.
The cause was submitted to this court on March 18, 1891, by written stipulation of the parties, upon printed briefs filed on the merits. Subsequently the defendant in error filed a motion to dismiss the petition in error for the want of proper parties. Before passing to the errors assigned, we will consider the question raised by the motion to dismiss.
It is insisted that Elmer E. Henkle was not made a party to the proceedings in error, and that he has not made any appearance in this court. While his name is given in the title of the cause in the petition in error as one of the plaintiffs in error, it fully appears from the body of the pleading that Munson, Way, Zehrung, and Consaul alone are seeking a reversal of the judgment. The affidavit of Mr. Henkle, filed in support of the motion, discloses that the proceedings in error were instituted and carried on without his knowledge or consent; that he never authorized any person to appear for him in this court, and never consented to be a party plaintiff or defendant, but that his name was inadvertently inserted in the petition in error. Mr Henkle, being one of the defendants in the joint judgment sought to be reversed by these proceedings, should have been made a party, either as plaintiff or defendant. It has been held, and we think rightly, that when all parties to a joint judgment have not been made parties to the proceedings in error brought to reverse such judgment the defendant may have the same dismissed. (Wolf v. Murphy, 21 Neb. 472, 32 N.W. 303; Hendrickson v. Sullivan, 28 Neb. 790, 44 N.W. 1135.) While good practice requires that all the parties to the judgment below should be before this court, it does not follow that the motion to dismiss the petition in error, made at this late day, should be sustained. The parties, having submitted the cause on its merits, waived the objection that there is a defect of parties. Such a defect is waived unless it is taken advantage of before the submission on the case upon the record of the court below. Had the objection been timely made, the ruling upon the motion might have been different, but not having interposed the same until so late a date in the proceedings the motion to dismiss is overruled.
The first error assigned in the brief of counsel for plaintiffs in error is based upon the ruling of the trial court in admitting certain testimony of the witness E. E. Henkle. The defendant Zehrung, in his answer, denied that he ever signed or authorized any person to sign for him the bonds in suit, and avers that he and Henkle, at the time said bonds were executed, were partners in the hardware business in the city of Lincoln, under the firm name of Zehrung & Henkle; and that Henkle had no right or authority to sign the firm name to said bonds, and that said Zehrung never at any time assented thereto. The plaintiff, for reply, denied each and every allegation in said answer contained. Henkle, in his amended answer, admits that he signed the firm name to the bonds, and alleges, in substance, among other things, that such signing was within the scope of the partnership, and that Zehrung was fully apprised of the fact, and ratified the same. Upon the trial Mr. Henkle testified, in effect, over the objection of Zehrung, that he signed the name of his firm to the bonds; that when the same was signed Mr. Zehrung was in Colfax, Iowa, and on his return to Lincoln a short time afterwards witness informed Zehrung of the fact of the signing and that the object and purpose in so doing was to secure to the firm Consaul's patronage; that Zehrung thereupon acquiesced in what his partner had done, and the firm thereafter continued to furnish materials to Consaul under said arrangement and collected pay for the same. As the pleadings stood, the testimony of the witness Henkle, to which objection was made, was unnecessary. The allegations in Henkle's amended answer were not controverted by any other pleading filed in the case; therefore, for the purpose of the trial, it must be taken as true that Zehrung acquiesced in and ratified the signing of the firm name to the bonds. Although the introduction of testimony on that branch of the case was not necessary, its admission was not prejudicial error.
Objection is made because the court permitted defendant in error to introduce in evidence the record of mechanics' liens which had been filed against the property, before he had shown the amount due on the liens, or the amount he had paid to discharge the same. While it is true that it was indispensable that the plaintiff should prove the amounts due on these liens and the sum paid out by him to satisfy and discharge the same, it is unimportant whether such proof was introduced before or after the liens were put in evidence. After the liens were received in evidence, the amount due on each and the amount paid by the plaintiff below to satisfy the same, were amply proven. This was sufficient. The order in which a party shall introduce his testimony is discretionary with the trial court.
The objection that copies of the records of the liens, as well as the original liens, were permitted to be received in evidence is without merit. Plaintiffs in error were not in the least prejudiced thereby.
Defendant in error testified that about the time the contract was let he rented one of the buildings erected by Consual, known as the Windsor Block, to one Criley for a term of years at $ 350 a month, and that the lessee was to take possession the first of October, the time specified in the building contract for the completion of the work, but that he was unable to do so until the following March, owing to the fact that the building was not finished until that time. This testimony was at the time objected to by the defendants. The purpose of its introduction was to show that plaintiff had been damaged by reason of the non-completion of the building according to the terms of the contract. Testimony of what the building had been rented for was pertinent, as bearing upon the question of damages, especially when followed by other testimony, as was done in this case, showing that the reasonable rental value of the building was more than Criley had agreed to pay. The fact that the lease was in writing did not make oral testimony of the fact of the leasing, and the amount of rent to be paid, incompetent. Plaintiff having leased the property for less than its fair rental value, he could only claim as damages the amount he leased the same for during the time the tenant was kept out of possession through the fault of the contractor.
William Gray, the architect who drew the plans and specifications for the buildings, was sworn as a witness on behalf of the plaintiff below. It is now claimed that the court erred in refusing to allow him to answer certain questions propounded to him on cross-examination. After having testified on such examination that he had felt unfriendly towards the defendant Consaul at times, but had no such feelings at the time of the trial, he was asked, "Did you have a conversation with the defendant James V. Consaul, Charles P. Larson, and one Hall in front of the State National Bank of Lincoln, about the last of June, 1887; I think his name was W. J. Hall?" Witness answered, "I don't remember the man; I can't place him, but so far as the other two men are concerned I might have; I would not say that I did not." He was after wards asked on cross-examination the following questions:
Q. Did you at that time and place, after Mr. Consaul had left the party and before he got out of sight, say to Larson in the presence of Hall, referring to Consaul, "There goes a man I'll do up, by God"?
Q. Did you say to Charles P. Larson in your office, in the city of Lincoln, state of Nebraska, in July, 1887, in speaking of the defendant Consaul, you would do Consaul up so bad he would never do any more work in Lincoln?
Q. Did you say to Charles P. Larson at your office in June, 1887, after the contract had been let to Consaul, that Consaul had taken advantage of Sheldon, and that you would get even with Consaul?
Q. Did you say to Charles P. Larson in front of the Appelget block, on Twelfth street in the city of Lincoln, between P and Q streets, in December, 1887, about the 15th, in reply to a question of Larson's as to how Consaul was getting along, that he paid no attention to you and that you would let him go ahead until he got through and then your turn would come?
To each of these interrogatories counsel for plaintiff objected, as incompetent, immaterial, and irrelevant. The objection was sustained and the testimony excluded.
Subsequently the defendants called Mr. Larson as a witness, and after having testified that he had had a conversation with Mr. Gray in front of the State National Bank building in the presence of Hall...
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