Rucker v. Eddings

• Citation: 7 Mo. 115
• Parties: RUCKER v. EDDINGS.
• Decision Date: 31 August 1841
• Court: Missouri Supreme Court

7 Mo. 115

RUCKER

v.EDDINGS.

Supreme Court of Missouri.

August Term, 1841.

TODD & CLARK, for Appellant. 1st. The court erred in not instructing the jury to discharge the items of the account, not proven by him in the examination in chief. 2nd. The court erred in permitting the plaintiff to prove the value of any work, without proving that the plaintiff had done the work. 3rd. The court erred in permitting the plaintiff as rebutting evidence to prove in chief his cause of action. 4th. The court erred after permitting the plaintiff in explanation, to prove the special agreement in the first count, in refusing the defendant leave to prove the nature of that agreement, and a failure on the plaintiff to fulfil it. 5th. The court erred in not permitting the defendant to give further testimony when all rules had been relaxed to the plaintiff's benefit. 2 Lit. R. 232; 1 Monroe, 117, 118; 6 Littell, 269; 1 J. J. Marsh. 70, 607.

DAVIS, for Appellee.

SCOTT, J.

The appellee, Eddings, sued the appellant, Rucker, in assumpsit, and declared in his first count upon a special agreement for carpenters' work to be done about Rucker's house, at the sum of one hundred and fifteen dollars; and in a second count declared upon a quantum meruit for carpenters' work. The general issue was pleaded, and upon a trial the plaintiff below recovered $144 70.

Only such facts will be stated from the record as will be necessary to a proper understanding of the points on which the reversal of the judgment below is sought. It appears that on the trial of the cause, the plaintiff below introduced a witness, and showed him an account for work and labor done by the plaintiff below for the appellant. The witness proved some items of the account amounting to between forty and fifty dollars, and after detailing a long altercation between one Lay, who, it seems, was a partner of the appellee in doing the work, and the defendant below, in which the one asserted that the work had been done, whilst the other denied it, he was asked his opinion as to the value of the residue of the work charged on the account, to which inquiry the defendant below objected, because no evidence had been given to show by whom the work had been done. The plaintiff here closed his evidence in chief, and thereupon the defendant moved the court to instruct the jury that they would disregard all the items of the plaintiff's account not proved. The plaintiff objected to this instruction, stating, that he intended to prove these items by the defendant's testimony, and that he had other testimony. The court refused to give this instruction.

The defendant then introduced the before mentioned Lay as a witness, who testified that he was the partner of the plaintiff in doing the work in the account specified, and was entitled to one-half of the amount to be recovered in this action. The plaintiff on a cross-examination of the witness was permitted by the court to prove his whole account, and the value of the work done; to this the defendant objected. After the examination of this witness, the defendant stated to the court that he had other witnesses to other points of his defense, but that on the evidence of the witness Lay he would rest his cause. And thereupon moved the court to instruct the jury that if they believe the witness, Lay, and the plaintiff were partners at the time of making the contract and doing the work charged in the plaintiff's account, they will find for the defendant. This instruction, with others of a like import, were objected to by the plaintiff, and whilst they were under discussion, the bill of exceptions states the plaintiff's counsel stated to the court that Lay, the witness, did not testify that he was a partner in making the contract for the work sued for, and applied to the court and had leave to recall the said witness, the defendant consenting. The witness on this last examination stated, that at the time the contract was made between plaintiff and defendant, he had not undertaken with the plaintiff to give him the job; that he and plaintiff had conversed about the job, had calculated the work, yet plaintiff went alone and made the contract, and the witness did not join him therein until the next time he saw him after the contract was made. Whereupon the defendant asked leave to withdraw his instructions, and introduce witnesses to other matter of defense, stating that the evidence was for the purpose of proving a special contract for the work; and that it had not been completed. To this the plaintiff objected and was sustained in his objection by the court. The refusal of the court to give the first instruction asked for; the permission given to the plaintiff to give evidence in chief on the cross-examination of the defendant's witness, and its refusal to permit the defendant to introduce evidence in the defense after the withdrawal of the last instructions, are errors complained of by the defendant.

The law has intrusted courts with a discretion in allowing the parties to a cause to obviate the effects of inadvertence by the introduction of testimony out of its order. This discretion is to be exercised in furtherance of justice, and in a manner so as not to encourage the tampering with witnesses,...