Kintz v. R.J. Menz Lumber Co.

• Decision Date: 20 April 1911
• Docket Number: No. 7,213.,7,213.
• Citation: 94 N.E. 802,47 Ind.App. 475
• Parties: KINTZ v. R. J. MENZ LUMBER CO.
• Court: Indiana Appellate Court

47 Ind.App. 475

94 N.E. 802

KINTZ

v.R. J. MENZ LUMBER CO.

No. 7,213.

Appellate Court of Indiana, Division No. 2.

April 20, 1911.

Appeal from Superior Court, Vigo County; John E. Cox, Judge.

Action by the R. J. Menz Lumber Company against Norbert C. Kintz. Judgment for plaintiff. Defendant appeals. Affirmed.

Geo. A. Scott, for appellant. Daniel V. Miller, for appellee.

IBACH, J.

Appellee, R. J. Menz Lumber Company, sued appellant, Norbert C. Kintz, on account of three car loads of shingles sold and delivered to and received and accepted by him, and recovered judgment for $1,473, principal and interest. The issues were formed by the complaint of appellee and appellant's general denial. All the evidence in the case was that given by Daniel V. Miller, who was sole counsel for appellee.

Appellant assigns error of the lower court in permitting witness Miller to testify, over the objection of appellant, when it was disclosed that he was sole counsel for plaintiff, in overruling the motion of appellant to strike out the testimony of witness Miller in regard to a conversation which took place between witness and appellant at a time when they were discussing a settlement of the matter in issue, and in finding for plaintiff, for the reasons that the evidence failed to show any contract between the parties, that, if any contract was shown, it was a written one, and the action was upon an oral contract, and that there was not sufficient evidence to enable the court to determine the value of the goods claimed to have been sold.

[1] There is no apparent reason why attorney Miller was not a competent witness, though he was sole counsel for appellee, and as such conducted his own examination. An attorney at law is not incompetent to testify in a case in which he appears for one of the parties. The only objections which could be made to his evidence would go to its weight, not to its competency, and the weight which should be given to the testimony of the witness is to be determined by the court before whom the case is tried. While the practice of an attorney testifying for his client is not to be commended, and is often condemned, yet it sometimes becomes a matter of necessity for him to testify in a case in which he is engaged, and this may have been true in the suit before us. The record discloses no other witness present.

[2] The principal question presented for review is the action of the lower court in refusing to strike out the testimony of Miller as to statements made by appellant, Kintz, in a conversation between him and witness at a time when they were talking about the adjustment of the claim. The witness testified that during this conversation he presented to appellant the statement of the claim of appellee, and appellant told him that the shingles, when they were ordered, were worth the prices set forth in that...