Bradbury v. McHenry

COOPER, C. This action was brought by plaintiffs to recover of defendants the sum of $2,034.45, alleged to be due upon an express contract for services rendered and material furnished in boring for defendants an artesian well. The facts as to the boring of the well and the value of the services and material were not controverted. The premises on which the well was bored belonged at all the times referred to in the complaint to the defendant Nellie McHenry, who is the wife of defendant John McHenry, but were leased to, and in the possession of, one James McHenry and Phillip L. Wooster,, partners under the name of Wooster & McHenry. James McHenry was a brother of defendant John McHenry. It was claimed by defendants that the well was bored at the request of, and under a contract with, the firm of Wooster & McHenry, and that defendants had nothing to do with the employment of plaintiffs in any manner. The question was as to whether plaintiffs’ contract was with defendants, as contended by plaintiffs, or with the firm of Wooster & McHenry. It was established without contradiction that, prior to the commencement of the present suit, the plaintiffs commenced an action against the firm of Wooster & McHenry by filing a verified complaint, alleging that the amount now claimed was due from said firm of Wooster & McHenry upon [296]an express contract. An affidavit for attachment was made in said last-named action by Bradbury, one of the present plaintiffs, in which he swore the amount was due and owing from Wooster & McHenry upon an express contract. After said last-named action was commenced against said Wooster & McHenry, they filed a petition in insolvency, and the plaintiffs dismissed the said action. The evidence on the part of the defendants in this case was to the effect that they made no contract with plaintiffs, did not employ them, and had nothing to do with having the well bored. The case was tried before a jury, and verdict for defendants. Judgment was thereupon rendered. Motion for a new trial made and • denied, and this appeal is from the judgment and order. The instructions given to the jury are not in the record, and plaintiffs’ counsel admit that there is sufficient evidence to sustain the verdict.

The contention here is that prejudicial error was committed by the court below in the rejection of testimony and in certain remarks made by the court in the presence of the jury. While the witness Wooster (a member of the firm of Wooster & McHenry) was being examined on behalf of plaintiffs, in rebuttal, he stated that he remembered the fact of going to the well about the time it was being completed, and there seeing a band of hogs, and the witness was asked by plaintiffs’ counsel if the hogs were represented to him as belonging to the farm. The testimony was objected to as being incompetent, immaterial and not in rebuttal. The court sustained the objection, and counsel for plaintiffs then made a statement of certain facts which he offered to prove by the witness, and, among other facts, “a general course of conduct on the part of James McHenry showing that James McHenry did not himself regard the firm of Wooster & McHenry as the parties liable to pay for the well.” The court thought the evidence not in rebuttal or material, and in ruling upon the question said: “I can see the dilemma the plaintiffs are in. I wish to give them all the latitude I possibly can, but I don’t see what figure this testimony would cut in the case.” It is claimed that the above remark was highly prejudicial to the plaintiffs, and that it was the equivalent • of telling the jury that the plaintiffs had no case. While it would have been better for the judge to have refrained from making the remark, we do not think it such error as would justify a re