Wise v. Wakefield

BEITT, 1. Plaintiffs sued to recover a balance of eight hundred and thirteen dollars and forty-two cents alleged to be due them upon a mutual and open account with defendant. They obtained a verdict and judgment for the sum of two hundred and eight dollars and six cents only; afterward, their motion for new trial was denied. They urge here that the verdict was not justified by the evidence; but the only specification of insufficiency in that respect contained in the statement on motion for new trial was this: “The evidence was insufficient for the jury to find that plaintiffs were only entitled to judgment for the sum of two hundred and eight dollars and six cents”; which was to say no more than that the verdict should have been for a larger sum, and was really no specification at all. Appellants assert that the specification “is all it could be,” but we think they might at least have made it state, as they have stated in argument, what items of credit in their favor they deemed to be established without material conflict of evidence.

¾. Near the close of the trial, which had continued, it seems, some eight days, plaintiffs applied for leave to file an amended complaint setting forth in addition to the items alleged in their original complaint various others said to have been proved in the [110]course of the evidence, and by which the balance in their favor was materially augmented; the court ordered that they have leave to amend in the more important particulars proposed on condition that a previous offer by defendant to allow judgment in a certain sum be deemed increased to correspond with the increased demand of the complaint; plaintiffs did not act on this suggestion, and complain now of the denial of their application. The matter was discretionary with the court, and we are unable to see that its discretion was abused.

3. A certain person was the agent of plaintiffs in a great part, if not all, of the transactions which gave rise to the suit; he was called by them as a witness and testified in their behalf at great length. When defendant opened his case he called as his first witness the said agent of plaintiffs and examined him as to a single item of credit claimed by defendant, his answers being unfavorable to the latter. Subsequently defendant introduced a quantity of testimony to the effect that said witness’ general reputation for truth, honesty, and integrity was bad. (Code Civ. Proc., see. 2051.) It is contended that such testimony was improperly admitted, and that defendant, by the examination of the witness in his own behalf, was precluded from impeaching his character. We are disposed to think this objection should have been sustained if it had'been properly presented in the court below; but the only ground stated was that the testimony was ‘incompetent, irrelevant, and immaterial’; the testimony was undoubtedly competent in the general sense, and only incompetent because of the fact that defendant had made the impeached witness his own; and this ground was not specified; the point of the exception was not “so stated as to be apparent to the court.” (Nightingale v. Scannell, 18 Cal. 315, 323.) A like consideration applies to the further contention that the evidence was wrongly admitted because not confined to the general reputation of the impeached witness for truth, etc., in the community where he resided; the broad objection of incompetence and irrelevance did not reach the point; the general reputation of a witness necessarily includes repute in the place of Ms residence, and if it was desired to restrict the inquiry to that place the objection should have been stated accordingly. Lastly, under this head, it is said that the court erred in allowing the question