Schurtz v. Kerkow

McFarland, J. This is an action to recover for services rendered by plaintiff to defendant as manager of a certain restaurant and saloon, called the Vienna Buffet, under a contract by which plaintiff was to have one half of the net profits, to be computed monthly. The issue was as to the amount of the profits between June 1 and September 1, 1888. Such amount was found to be $2,550.55, for one half of which, less certain payments, plaintiff had judgment. Defendant appeals from the judgment, and from an order denying a new trial.

[2781]. The principal evidence for plaintiff, aside from parts of a cash-book, consisted of the testimony of one Blackman. He testified that he was an expert accountant; that he made an examination of the books of the Vienna Buffet; and that the examination showed the net profits of the business from June 1st to August 11th to be $2,262.90. Upon cross-examination, he said that, with the exception of some of the items in the cashbook, he did not personally examine the books; that his partner made the detailed examination of the books and furnished the figures from which he (the witness) made the calculations; and that he had full confidence in the ability and honesty of his partner to furnish the figures from the books correctly. His partner was not examined as a witness, and defendant contends that the evidence does not justify the judgment, because the partner was not called to prove that the figures which he gave Blackman were correctly taken from the books. But defendant did not make any objection to the testimony of Blackman; he did not say that it was hearsay, or inadmissible upon any other ground, and he did not move to strike it out. Moreover, the examination was made by Blackman at the request of defendant, and without the knowledge of plaintiff; and Blackman testifies that his statement was shown to defendant and plaintiff and “assented to,” although in another part of his testimony he says that defendant disputed it “by saying .those could not be the profits,” by which, we suppose, he means that defendant did not deny that the figures were correctly taken from the books, but thought that the calculation must be wrong. Under these circumstances, no objection having been made to the testimony of Blackman, the court had the right to assume that the figures given to Blackman by his partner were correct. This point, therefore, furnishes no ground for a reversal of the judgment.

2. But the court erred, we think, materially, in ruling [279]