Snapp v. Manning

• Court: Colorado Supreme Court
• Writing for the Court: [77 Colo. 269] ADAMS, J.
• Citation: Snapp v. Manning, 77 Colo. 268, 236 P. 131 (Colo. 1925)
• Decision Date: 04 May 1925
• Docket Number: 11198.
• Parties: SNAPP et al. v. MANNING.

236 P. 131

77 Colo. 268

SNAPP et al. v. MANNING.

No. 11198.

Supreme Court of Colorado

May 4, 1925

Department 1.

Error to District Court, City and County of Denver; Julian H Moore, Judge.

Action by Harry J. Manning against William H. Snapp and wife. Judgment for plaintiff, and defendants bring error and apply for supersedeas.

Supersedeas denied, and judgment affirmed.

C Werthan, of Denver (Frank Exline, of Denver, of counsel), for plaintiffs in error.

Jacob Schaetzel, Walter E. Schwed, and Albert J. Gould, Jr., all of Denver, for defendant in error.

ADAMS, J.

Plaintiffs in error, Snapp and wife, were defendants below; Manning defendant in error, was plaintiff. They are here designated as in the trial court.

Action was brought by Manning against defendants to recover compensation for the preparation by him for them of sketches plans, specifications, and estimates for the erection of a contemplated apartment house. Plaintiff's performance of contract and defendants' breach thereof were alleged, Plaintiff's first cause of action was on express contract; the second, on quantum meruit. Defendants answered denying plaintiff's allegations and set forth their side of the controversy as to what the agreement was. The case was submitted to a jury on the issues tendered, a verdict rendered for plaintiff, and judgment entered accordingly. Defendants bring error and apply for a supersedeas.

The controlling assignments of error may be classified under two headings: (a) Admission of evidence; and (b) the instructions to the jury. We shall dispose of them in this order.

1. As to the evidence: Two sets of plans were made and submitted to defendants, and error in assigned on the allowance of testimony concerning the first set. Evidence was admitted from each side concerning both sets, and testimony produced, which the jury apparently believed, that the second set had been approved by the defendants. The instructions to the jury and the verdict and judgment against defendants were based on the second set. Plaintiff did not recover anything for the preparation of the first set of plans. The testimony concerning the first set was connected with the explained the necessity for the second set. Even if the admission of evidence as to the first set had been technically erroneous, under these circumstances it was without prejudice and therefore requires no consideration. Chase et al. v. Lathrop, 74 Colo. 559, 223 P. 54.

2. Objection is also made by plaintiffs in error to the admission of certain other testimony, but they themselves first brought up the subject-matter; it bore on the issues, and they waived the right to object to similar testimony on behalf of the defendants in error. They were not privileged, under such circumstances, to deny the materiality of this testimony. Grimes v. Hill, 15 Colo. 359, 365, 25 P. 698; Scott S. & T. Co. v. Roberts, 42 Colo. 280, 282, 93 P. 1123.

Furthermore, the testimony was not objected to when offered, so, even if it might have been excluded on objection made at the time, it comes within the rule stated in Seerie v. Brewer, 40 Colo. 299, 302, 90 P. 508, 509 (122 Am.St.Rep. 1065), that----

'If a party suffers an improper question to be asked without objecting thereto, he cannot thereafter be heard to complain of an unfavorable responsive answer.'

3. As to the instructions: Error is assigned on instructions to the jury and for failure to give certain instructions. The instructions as given fully and fairly covered the contentions of both sides to the controversy and the law applicable thereto. We do not agree with counsel that they are insufficient. Without them the jury would not have been able to pass...