Vickery v. McCormick
| Decision Date | 08 March 1889 |
| Docket Number | 13,639 |
| Citation | 20 N.E. 495,117 Ind. 594 |
| Parties | Vickery et al. v. McCormick |
| Court | Indiana Supreme Court |
From the Vanderburgh Superior Court.
The judgment is affirmed, with costs.
C. L Wedding, H. C. Gooding, J. B. Handy, C. W. Armstrong and J B. Cockrum, for appellants.
D. B Kumler, G. W. Cooper and G. F. Denby, for appellee.
McCormick sued Vickery, Cooper & Co. to recover damages alleged to have resulted to him on account of the failure of the defendants to comply with a written contract, by the terms of which they had agreed to deliver a large quantity of lumber to the plaintiff, at Evansville, Indiana.
It appeared that the plaintiff had entered into a contract with the State of Indiana for the construction of a hospital for the insane at Evansville. His contract with the State required him to use a large quantity of white-oak lumber, of a certain grade and quality, in the construction of the building. The defendants agreed to supply about six hundred thousand feet of white-oak lumber, of specified dimensions at a stipulated price, the lumber to be delivered within ninety days, and to be "free from wind-shakes, loose or black knots, and to be sound, sawed square, and full sizes." The ground of complaint was, that because of the defendants' failure to comply with their contract the plaintiff had been put to great expense in getting other lumber of the kind agreed to be furnished, and that he suffered great damage on account of being delayed in the prosecution and completion of his contract with the State. The plaintiff had a verdict for $ 2,286, but the court, upon consideration of the motion for a new trial, suggested that so much of the verdict as exceeded the sum of $ 1,270.20 was excessive. Thereupon, the plaintiff remitted $ 1,015.80, and the motion for a new trial was overruled and judgment entered for $ 1,270.20.
Such questions as there are for decision are predicated on the ruling of the court in overruling the motion for a new trial.
On appellants' behalf it is contended that the court erred in admitting certain testimony delivered by the plaintiff in his own behalf at the trial. The testimony appears in the bill of exceptions, in narrative form. An examination of the record discloses that the plaintiff testified, in substance that he had written and spoken to several other lumber dealers, after the defendants failed to comply with their contract, with a view of procuring the lumber, so that he might proceed with the construction of the work, but that the persons communicated with had told him that they were unable, or unwilling, to furnish the lumber. After the witness had proceeded with his testimony thus far, the record shows that the "defendants' counsel object to the recital of communications between witness and saw-mill men." There is no ground of objection stated, nor does it appear that any objection was made to any question that had been asked, or that any motion was made to strike out any particular answer. Now, while we doubt whether the evidence was in and of itself objectionable, since it tended to show that the plaintiff exercised diligence in trying to procure other lumber to supply that which the defendants failed to furnish, the record presents no question for decision. In order to make an objection to evidence available, the objection must be made when a question which seems to invite objectionable evidence is asked, and the particular evidence as well as the specific grounds of objection must be fairly pointed out and stated, or if objectionable evidence is volunteered by a witness, or given in an answer that is not responsive to the question asked, or otherwise, before objection can reasonably be made, a motion should be made to strike out the particular matter which is considered objectionable. Merely to object,...
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