Precisely what questions are intended to be raised here we are not informed. No oral argument has been submitted on behalf of the plaintiff in error. No brief of points has been filed, nor has any assignment of errors been made. We are left to search the entire record to discover, if possible, some fault in the pleadings, or in the rulings of the Circuit Court, and this without any intimation that any error is alleged to have been committed, other than is given by the fact that a writ of error has been sued out. We find, indeed, that ten exceptions were taken at the trial to the admission or rejection of evidence, the effects of which were to bring upon the record the rulings of the court, but we are not informed that it is even claimed those rulings were erroneous. Three exceptions, most indefinite, were also taken to the charge of the court delivered to the jury, but it is not now alleged that any portion of the charge was not in strict accordance with the law. In view of this state of facts the judgment might, with great propriety, be affirmed without further remarks. We have, however, examined all the exceptions taken in the court below, and discovered nothing of which the plaintiff in error has any right to complain.
The first exception was to the admission of evidence tending to show what progress the plaintiff had made toward the performance of his part of the contract when the city gave him notice that the hose would not be received. Subject to the exception it was proved that the plaintiff then had on hand a large quantity of leather, which he had cut down for seven thousand feet of ten-and-a-half-inch hose, such as was required by the contract; that there was no sale in the market for such hose; that consequently, on the refusal of the defendant to take it, he was compelled to cut it down again for nine-inch hose, which could be sold, and that this involved a large loss of leather, as well as of labor. It is plain the evidence has a direct bearing upon the question what amount of damages the plaintiff was entitled to recover, if entitled to recover at all. The loss resulting from the waste of leather and of labor was an immediate and necessary consequence of the refusal of the city to comply with its contract. The evidence was, therefore, properly received.
The second exception was, that the court permitted the plaintiff to give in evidence the declaration of one of the board of fire commissioners of the city, who were authorized to purchase hose, to the effect that he thought the city was liable on the contract, to a certain extent, on account of its having used the hose for fires. It may be admitted that the witness's expression of opinion, had it stood alone, would not have been admissible; but it was connected with the admission of the fact that the city had used a portion of the hose, not simply in testing it, but for the extinguishment of fires. The fact was a material one, bearing upon the questions whether there had been a contract, and whether the hose delivered was such as the contract demanded. The admission of the fact was by an authorized agent of the city, one who had participated in making the contract. There was, therefore, no error in receiving the evidence.
We discover no error in admitting the testimony of Edward Smidt, to which exception was taken. He was proved to have been an expert, sufficiently to justify his being permitted to state what is, and what is not, a proper mode of testing the strength of leather fire-hose. He was a manufacturer of steam-gauges, and he had repeatedly tested hose. It having been claimed by the defendant that the hose offered would not bear the required test, it was certainly competent for the plaintiff to prove that the ex parte test applied by the city was not a fair one, and, of course, to prove what constitutes 'a fair and satisfactory test,' such as was provided for in the contract.
The fourth and fifth exceptions present the question whether the defendant should have been permitted to prove at what rates it had made a contract for hose with another party, and what bids were offered when that other contract was made. It is impossible to see how this could have had any legitimate bearing upon the questions presented by the case. If the city was liable at all to the plaintiff, clearly its liability can be measured only by the contract made with him. The extent of its obligation is not to be found in another contract made with another party. The evidence offered was, therefore, rightly excluded.
The sixth exception is to an answer given by one of the defendant's witnesses to a question propounded to him on cross-examination. He was asked, 'What is the best leather for making leather fire-hose?' to which he answered, 'Leather made from slaughtered hides.' To this the defendant objected, and took an exception because the court admitted it. We are not informed, and we do not perceive how he could have been prejudiced by the answer. Let it be, it was immaterial; still it was not hurtful. It was, however, admissible, if for no other reason, because it tended to furnish a test of the value of the opinions the witness had expressed in his testimony in chief.
The next exception is that the court refused to permit a copy of a letter to the plaintiff to be given in evidence, when no notice had been given to produce the original. It needs no argument to show that the decision of the court was correct.
The eighth and ninth exceptions are that the court would not allow a witness, not an expert, to give his opinion that the plaintiff's hose would not answer the purpose of the city, that it could not be safely used at fires, and that it was of no value to the city. We see no error in this. To say nothing of the medium of proof (the opinion of a witness not an expert), the subject was objectionable. It is obviously quite immaterial whether the expectations of the city from the contract were realized, or whether it had made an injudicious bargain. The real question was, whether the plaintiff had fulfilled, or offered to fulfil, his part of the contract. It is observable, however, that the witness did afterwards substantially answer the questions proposed, and that the defendant had the benefit of his answers.
The tenth exception is that a witness, after having testified he had not examined the quality of the plaintiff's hose at all, was not permitted to answer the question how it compared with hose the city had bought from another person. How he could have answered the question it is not easy to see, but, if he could, the hose purchased from that other person was not the standard by which that of the plaintiff was agreed to be measured. The parties had fixed their own standard. The only legitimate rule was that which the contract provided.
We pass now to the exceptions taken to the charge of the court. They are to so much of the charge as relates to the time within which the contract was to be performed, and also to so much as relates to the testing of the hose, and also to so much as relates to the failure to put the contract in writing. In regard to these it may be observed that they are not taken conformably with the fourth rule of the court, which requires an exceptant to state distinctly the several matters of law in the charge to which he excepts, and declares that such matters of law, and those only, shall be inserted in the bill of exceptions and allowed by the court. But we have examined the entire charge and found nothing of which the plaintiff in error has any just reason to complain. It was fairly submitted to the jury to find what the contract was, whether it had been concluded, what the parties had agreed respecting the time for performance by the plaintiff, whether the plaintiff was in any default, whether the hose offered came up to the required standard, and whether the tests applied had been made, as the contract required, 'in a fair and impartial manner.' In regard to the failure to put the contract in writing the court said little more than to express regret that the city usually made such contracts (as it had been proved), without reducing them to a written form, adding only, 'that if the advertisement' (for proposals), 'is clear and distinct, and if the proposals are also clear, and they are accepted in the terms in which they are made, simply and absolutely, that contains the contract between the parties.' Surely this was unexceptionable. We add only, that a motion for a new trial, being an appeal to the discretion of the court in which the trial has taken place, the action of that court in overruling it is not reviewable in error.
JUDGMENT AFFIRMED WITH COSTS.
Notes edit
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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