Steinbauer v. Stone

• Decision Date: 17 January 1902
• Citation: 88 N.W. 754,85 Minn. 274
• Parties: STEINBAUER v. STONE.
• Court: Minnesota Supreme Court

85 Minn. 274

88 N.W. 754

STEINBAUER

v.STONE.

Supreme Court of Minnesota.

Jan. 17, 1902.

Appeal from district court Ramsey county; Brill, Judge.

Action by Albert Steinbauer against Charles Stone. Verdict for plaintiff. From an order denying a new trial, defendant appeals. Affirmed.

Syllabus by the Court

1. The firmly-established practice in this state requiring counsel on the trial of an action to call attention to obviously unintentional misstatements and verbal errors in the charge of the court to the jury, if deemed at all likely to be misleading, was not abrogated by the passage of chapter 113, Gen. Laws 1901; and the legislature did not intend by that act to permit litigants to single out, after the trial of the action, isolated portions of the charge, assign the same as errors, and thus secure a new trial or the reversal of an order denying one, for some mere technical or verbal error or unintentional misstatement of law or fact, which could have been corrected at the trial had attention been called to it by counsel.

2. Various rulings on the trial of this action considered, and held to present no reversible error, and the evidence is examined, and held to sustain the verdict of the jury. Henry C. James, for appellant.

Webber & Lees, for respondent.

BROWN, J.

This action was brought to recover a balance claimed to be due plaintiff for certain stone furnished by him to defendant under a contract between the parties, for use in the construction of a bridge at Eau Claire, Wis. Plaintiff claimed in his complaint that he delivered to defendant 2,021 cubic yards of stone, while defendant, admitting the contract, and that certain stone was furnished thereunder, denies that any more than 1,888 cubic yards were in fact furnished. Defendant also set up a counterclaim for damages for the alleged failure of plaintiff to furnish the stone at the time required by the contract. Plaintiff had a verdict in the court below, and defendant appealed from an order denying a new trial. The principal question on the trial in the court below with respect to the right of plaintiff to recover was as to the quantity of stone furnished by him under the contract; that is, the number of cubic yards. The contract provided that defendant should pay $6 per cubic yard for all stone furnished and delivered, and the main controversy below was as to the quantity actually furnished. It was contended by plaintiff, and he offered evidence for the purpose of so showing, that there was a general custom among persons engaged in similar contracts and transactions to ascertain and determine the number of cubic yards by measurements from the completed structure; but his evidence tending to show such a custom fell far short of doing so, and was stricken out. It clearly appeared from his testimony that all he knew of any custom of that nature was learned from contracts he himself had made and performed. Upon this fact appearing, the court below struck out the evidence, and the case was submitted to the jury without reference to that contention. While the record is not quite clear that the evidence was stricken out, it is clear that the measurements of the completed structure were not submitted to or considered by the jury in determining the number of cubic yards of stone actually furnished by plaintiff. When the evidence failed to show a general custom in this respect, plaintiff resorted to another custom, which seems to have been acquiesced in by defendant, and that was to ascertain the number of cubic yards by weight. Upon this method of determining the controverted question evidence was offered by both parties, and such was the only evidence relied upon by plaintiff. This appears clearly from the charge of the court to the jury, and from the memorandum of the trial judge attached to the order denying a new trial. But it is contended by appellant that, even though this evidence was not submitted to or considered by the jury, its admission resulted prejudicially to defendant. We are entirely at a loss to understand how this evidence, incomplete and valueless for any purpose, even though not stricken out, could have prejudiced the defendant before the jury, and we are unable to concur with counsel that its admission resulted to the detriment of his client's cause.

Assignments of error 4, 5, 8, 10,...