Idaho Gold Coin Min. & Mill. Co. v. Colorado Iron Works Co.

• Decision Date: 01 July 1910
• Citation: 111 P. 553,49 Colo. 66
• Parties: IDAHO GOLD COIN MIN. & MILL. CO. v. COLORADO IRON WORKS CO.
• Court: Colorado Supreme Court

111 P. 553

49 Colo. 66

IDAHO GOLD COIN MIN. & MILL. CO. v. COLORADO IRON WORKS CO.

Supreme Court of Colorado

July, 1910

Rehearing Denied Nov. 14, 1910.

Error to District Court, City and County of Denver; Greeley W Whitford, Judge.

Action by the Colorado Iron Works Company against the Idaho Gold Coin Mining & Milling Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Wayne C. Williams, and Doud & Fowler, for plaintiff in error.

Andrew W. Gillette and Henry H. Clark, for defendant in error.

GABBERT J.

Defendant in error, Colorado Iron Works Company, engaged to construct in a thorough and workmanlike manner, for the plaintiff in error, the Idaho Gold Coin Mining & Milling Company, a crushing and cyanide plant, and to furnish all machinery and appliances necessary for that purpose. The iron works company claimed to have completed this contract, and brought suit against the gold coin company upon two causes of action: (1) To recover a balance alleged to be due under the contract and (2) for extras furnished. For defense to the first cause of action the defendant denied the construction of the plant according to the terms of the contract, alleged that the contract has not been performed, and also pleaded a counterclaim. As a defense to the second cause of action, the defendant pleaded that some of the extras were a part of the original contract, and that those which were not had been paid for. To these defenses, so far as affirmative, a replication was filed. The issues thus formulated were submitted to a jury, with the result that a verdict was rendered for plaintiff upon which judgment was afterwards entered. The defendant, the gold coin company, brings the case here for review on error. The errors assigned in support of the contention that reversible error was committed will be considered under the following subjects: (1) With respect to evidence; (2) by instructions given and refused; (3) in ruling on counsel's argument to the jury.

1. One of the principal questions involved was whether or not the plaintiff had performed its contract. During the progress of the trial, defendant sought to introduce a letter written by one of its representatives to the plaintiff, in which it was specified wherein the contract had not been fulfilled. An objection to its introduction was interposed upon the ground that it was incompetent. The objection was sustained. Declarations of a party, whether written or oral, which are distinctly self-serving, are not admissible in his behalf. Jones on Evidence (2d Ed.) § 235; 16 Cyc. 1202; Bd. Com'rs v. Keene Five Cents Savings Bank, 108 F. 505, 47 C.C.A. 464. The letter in question was clearly within this rule, and no error was committed in sustaining the objection to its introduction.

Questions propounded on cross-examination to witnesses introduced on behalf of plaintiff were objected to, and the objections sustained. It appears from the subsequent examination of these witnesses that, either they knew nothing regarding the matter inquired about, or, by an answer to another question, the one to which the objection was sustained was covered.

Objections to questions propounded on direct examination to witnesses for defendant were also sustained. The record discloses that the information sought to be elicited by these questions was secured by subsequent ones. It may be that the objections under consideration were without merit, and that sustaining them was, technically, error; but, as it appears these alleged errors were either cured or were harmless, the defendant was not prejudiced thereby.

Counsel for defendant also complained of a ruling overruling an objection to a question propounded to a witness for plaintiff on direct examination, based upon the ground that it called for the witness to give his understanding, instead of the facts. Although the court overruled the objection, the question was not answered, so that, even if the ruling was wrong, it was nonprejudicial.

2. Error is assigned upon an instruction given for the reason that it related to an abstract proposition not applicable to any issue in the case. This instruction was to the effect that if, by reason of defendant's delay in furnishing certain materials which it was to supply, the plaintiff was delayed in completing its contract beyond the time specified therein, then plaintiff would be entitled to the additional time to complete the plant which was occasioned by the delay of the defendant, and that, if it appeared the contract was performed within a period after the date thereby fixed corresponding with the delay caused by the default of defendant, the plaintiff would be entitled to recover the same as if its contract had been completed within the time thereby fixed. It is urged that this instruction should not have been given because the defendant was not claiming anything on account of delay in completing the contract. The case as to the first cause of action was tried by defendant upon the theory that the contract had not been performed. The contract specified the date when the structure was to be completed. It was not completed until later.

The contract provided that defendant was to perform certain work and supply certain materials. Plaintiff pleaded that it was delayed through the failure of defendant to comply with its part of the contract in the particulars specified. The defendant denied that plaintiff had been delayed by reason of any default on its part, for any length of time whatever, and, in any event, was not delayed for a period of time in excess of 15 days, and, as the general defense was nonperformance, the question of delay was an issue for the jury to determine; so that the question submitted by the instruction under consideration was clearly within the issues between the parties. True, the defendant did not claim damages for delay in completing the contract; but, under the defense interposed, it became material to determine whether or not the delay in completing the structure beyond the time specified in the contract was excusable because of the default of the defendant.

It is true, as contended by counsel for defendant, that instructions should not be given submitting to a jury issues not in the case; but, even if that proposition was applicable here, it is manifest that the jury were not misled by the instruction to the prejudice of the defendant. The issue on the first cause of action was performance of the contract. If the plaintiff established this, it was entitled to recover and if, as defendant claims, it did not seek to be relieved from its obligations under the contract because of delay in completing the plant, the fact that the...