Leet v. Wilson

By the Court, Rhodes, J. On the trial of this cause before the referee, the plaintiff was examined as a witness in his own behalf. The defendant objected to his testifying on the ground that the notice was “vague and uncertain,” that it did not “inform the defendants what facts or charges, claims, or indebtedness, the said witness is called to support,” and was not in conformity to the statute of 1861. The objection was not taken to his testifying to any particular point, but was directed generally to his being permitted to give any testimony under the notice.

The record does not purport to set out any of his testimony, but states that the “referee overruled the said objections, and permitted the plaintiff to give material testimony in his own behalf.” The complaint is simply the common count for work and labor, but on the demand of the defendants the plaintiff furnished a bill of particulars, setting forth the work performed by him on the railroad of the defendants, in laying the track, building and repairing the bridges, culverts, and cattle guards; in acting as the engineer, and repairing the grade; also the value of such labor. Portions of the services mentioned in the notice, in respect to which the plaintiff’s testimony was to be taken, are evidently the same as those set forth in his bill of particulars, although set forth in a different form.

The notice is not as precise in all respects as it might be, but it describes the services as having been performed for the defendants in the construction of the railroad mentioned in the bill of particulars. It is not necessary to state in the notice that the party offering himself as a witness will give all the testimony that may be required to entitle him to recover upon the whole case, or upon any given point in the case, or that he will state all the facts in relation to any certain point. He may offer to prove by his testimony either the time, the place, the character, or the value of the performance of any work, and rely upon other testimony to prove [401]the other facts necessary to be proven in order to charge the opposite party.

The plaintiff offered his own testimony to prove the laying of the first six miles of the track, the manner of doing the work, the time employed therein, and the value of his services in performing the work; also his personal services in locating the line of the railroad, and the character, extent, and value of the services; also other facts connected with items stated in his bill of particulars. It was proper for him .to give his testimony in relation to the facts above mentioned, and as the statement neither sets forth the testimony of the plaintiff nor the points about which he testified, it will not be presumed that he testified as to any facts not properly stated in the notice.