Watts v. Howard

• Citation: 72 N.W. 840,70 Minn. 122
• Decision Date: 11 November 1897
• Docket Number: 10,784--(116)
• Parties: HENRY F. WATTS and Another v. BENJAMIN F. HOWARD
• Court: Supreme Court of Minnesota (US)

72 N.W. 840

70 Minn. 122

HENRY F. WATTS and Another v. BENJAMIN F. HOWARD

Nos. 10,784--(116)

Supreme Court of Minnesota

November 11, 1897

Appeal by defendant from a judgment of the municipal court of Duluth, entered pursuant to a verdict of $ 151.06 in favor of plaintiffs, after a trial before Boyle, Special Judge. Affirmed.

Judgment affirmed.

Richards & Crandall, for appellant.

Allen Baldwin & Baldwin, for respondents.

OPINION

MITCHELL, J.

This action was brought to recover the purchase price of certain logs sold and delivered by plaintiffs to defendant. The sale and delivery and the agreed price per thousand feet were admitted by the defendant; the only real controversy being as to the number of feet in the logs. They had been scaled by the scaler employed at defendant's mill. The scale bill having been retained by the defendant at his office, one of the plaintiffs went there to ascertain its amount, and saw defendant's foreman. When this plaintiff was being examined as a witness in his own behalf, his counsel asked him, "Did he [the foreman] say how much the scale was?" to which the witness answered, "I asked him and he said '42,500 feet.'" Defendant's counsel then moved that the answer be stricken out, and the court's refusal to do so is now assigned as error.

When a question in terms calls for incompetent evidence, and no objection is made to the question, and the answer is responsive to it, it is discretionary with the court whether or not to strike out the answer. Moreover, as the defendant had admitted that the scale amounted to about 40,000 feet the difference between that and 42,500 would only amount to $ 8.75, which is too small to justify a reversal, especially as the defendant had the scale bill in his own possession, and could easily have produced it, if there was any mistake as to the amount.

2. When plaintiffs solicited defendant to buy the logs, he referred them to one Campbell, as the person who attended to that business for him, and requested them to go and talk to him. In pursuance of this direction, plaintiffs sought Campbell and took him where the logs were; and after he had examined them he and they agreed on the terms of the sale, one of which was that the logs were to be scaled by the scaler employed at the defendant's mill as soon as they arrived there, and that they should be paid for according to that scale, at $ 3.50 per thousand feet.

Upon the trial, def...