Morse v. Gilman

By the Court,

Cole, J.

All the instructions asked' by the defendant below were properly refused. They proceeded upon the assumption that the plaintiff’s only right of recovery *384 was founded upon the written contracts set forth or described in the complaint. Now the circuit court distinctly told the jury that these written contracts did not create any liability on the part of the defendant, and that it was not possible, under the proof, for the plaintiff to recover upon them. The court thus far was with the defendant. But this was not the only ground upon which the plaintiff sought to recover. It was stated in the complaint that a verbal contract was made and entered into between Dewey and Gilman, in March, 1857, by which Gilman, in consideration that Dewey would go on with the work and finish the grading, agreed and promised he would pay him for doing the balance of the grading at the rate of eighteen cents per cubic yard. It is alleged that Dewey went on and did a certain amount of work under this contract, and completed the grading. The circuit court submitted the question whether such a verbal contract was made, under proper instructions, to the j ury. For the court says, in its general charge: “ It is claimed on the part of the plaintiff that, in the fall of 1857, the defendant entered into a verbal contract with Dewey to do the grading for a part of which this action is brought, by which the defendant agreed to pay said Dewey for doing such grading at the rate of eighteen cents per cubic yard. It appears from the testimony that the grading was to be done on the streets adjoining Gilman's lots ; that the grading is done; and that the grading had been ordered and was chargeable to the lots. I think it was lawful for the defendant to make such a contract, and that if he did make it, a recovery might be had against him for a breach of it. You will consider whether such a subsequent contract has been proved. Dewey testified that such a one was made, and that it was made when he, Gilman and Merrick were all present, and that Merrick urged Gilman to enter into it; that the amount agreed to be paid was eighteen cents per cubic yard, and that it was acquiesced in by all. Gilman and Merrick contradict this. You must find from the testimony that there was such a contract *385 entered into, or the plaintiff cannot recover.” Now it is very evident that all that matter in respect to the making of this verbal contract, and its terms and conditions, if it was made, was a proper subject for the jury to pass upon in view of the evidence bearing upon it. About this there can be no doubt. And as the court properly submitted it to the jury, there was no error in so doing, or in refusing to give instructions which ignored entirely this branch of the case.

It is objected that the court erred in the portion of the charge above given, inasmuch as it assumed that certain material facts, such as “ that the grading had been ordered and was chargeable to the lots owned by Gilman” &c. had been established by the evidence, whereas there was no proof upon those points. The court did make use of those expressions, probably because there had been no controversy upon those points on the trial. It seems to have been assumed by both parties that the grading had been ordered by competent authority, that the work was chargeable to the adjoining lots where it was done, and that Gilman owned the lots. Hence the circuit judge naturally used the language he did. But still, if these expressions were improper, and calculated to prejudice the defense, a specific objection should have been.taken to them at the time. There was an exception taken to all that portion of the charge preceding the sentence, “ You will consider whether such subsequent contract has been provedbut this is too general to enable us to review the particular expressions complained of, even if they were objectionable in the sense in which they were used. Certainly it cannot be pretended that the entire portion of the charge excepted to is erroneous. And unless it is, we cannot reverse the judgment upon this general exception to the charge.

We think these remarks dispose of all the material questions in the case.

The judgment of the circuit court is affirmed.