Tischler v. Apple & Finley
Tischler v. Apple & Finley
Opinion of the Court
This is a suit at law instituted by appellees as plaintiffs in the Circuit Court for Duval county, in this State, against the appellant, as defendant in said court. The declaration contains the 'common counts for goods, wares and merchandise sold and delivered to said defendant at his request by said plaintiffs; for
The appellee claims seven hundred and thirty-six dollars for alleged extra work on said building, done, it is claimed, at the request and with the knowledge of appellant, outside of the -written contract in reference to the original building, and the parol agreement to put an additional story on it. Appellant admitted that some of the items sued for were extra, but insisted that most of them were embraced in the two agreements, and that he had paid appellees the sum of 84,454.04, all that was due on the contracts and for extra work. Appellees contend that they have been paid only $4,183, and the items which they sue for are extra, and they are entitled to pay for them. This is in brief the nature of the controversy between the parties.
The first error assigned is, that the referee erred in permitting the witness Findley, to answer the question: “Was there any understanding between you and Mr. Tischler as to the material to be used in setting the hearths ?” The record shows that appellant’s attorney objected to this question before the referee, and it seems the referee took the matter under advisement, and then admitted the question to be answered.
The second assignment is, that the referee erred in overruling appellant’s objection to the question propounded to the witness, Findley: “Hid the.selection include the halls and store rooms in which the cornices are charged for as extra work?” There are items in appellee’s account for plaster cornice in halls and store rooms. The contract calls for plaster cornice to be run in twenty-five rooms, instead of all rooms as specified. The witness, Findley, testified that appellant selected twenty-five rooms to be corniced as provided in the contract, and then he was asked the above question to which objection was made. It is evident that the object of the question was to elicit testimony that the rooms selected by appellant to be corniced did not include the halls and store room for which the extra charge was made. The witness testified that appellees corniced the twenty-five rooms selected by appellant, and that the halls and store rooms, for which the extra charge was made, did not include the twenty-five selected under the contract. The objection to the question is put upon the ground that the plans and speci
The third assignment is, that the referee erred in sustaining the objection of appellees’ counsel to question : ‘ ‘Did you (meaning Firidled) and Apple complete the contract as agreed ?’ ’ - This question was asked the witness, Findley, on cross-examination, and the objection was sustained on the ground that it was not a proper cross-examination. As we have already stated, appellees sued for work performed extra of any special contract-, and no claim was made for work
The fourth error assigned is, that the referee committed an error in sustaining appellee’s objection to the question put by appellant to Findlay on cross-examination : “Was Mr. Ladson working there under your employment, or Mr. Tischler’s?” Findley was asked on cross-examination when he was last in the building, and he stated, about the first of August, 1887. He was then asked, was the building then completed, and his answer was that “Mr. Ladson was finishing setting the grates.” Then follows the question objected to and excluded by the referee. We see no reason why it should have been excluded. A part of appellant’s defense was based upon the fact that appellees abandoned the work before it was finished, and that appellant had to finish the work at his expense. Ladson was one of the parties to whom appellant claims to have paid money to finish the work. Findley says that when he was at the house last Lad-son was setting grates, and it was material to show that Ladson was then working for appellant. If he employed Ladson to do work which appellees should have done, and paid for it, he had a right to deduct it from the contract price. But this can not be regarded as a material error in this case, because it appears in the subsequent part of the record that Findley admitted Ladson was working on the house under the employment of appellant. Both Ladson and appellant testify to this fact, and Findley stated, when testifying in rebuttal, that he suggested to appellant to em
The fifth ássignment of error is, that the referee erred in overruling his motion for a' new trial. The first, second and third grounds of this motion question in general terms the sufficiency of the evidence to sustain the judgment of the referee ; the fourth ground points out specially that the -referee erred in allowing appellees’ charge for cornice in halls and stores ; the fifth, in allowing appellees for setting twenty-five center pieces; sixth, in allowing appellees for brick and plastering in water closets ; and, seventh, in allowing appellant only half the amount paid to Lancy, Ladson and Burleigh, there being no evidence to support this finding. We will not go into a discussion of the evidence in this record bearing upon the findings of the referee, but our conclusion, based upon a due consideration of it, is that it is sufficient to sustain the judgment rendered. The same weight is accorded to the findings of facts by a referee as is given to the verdict of a jury. McClenny vs. Hubbard, 20 Fla., 541 ; Broward vs. Roche, 21 Fla., 465; Jacksonville, T. & K. W. Ry. Co. vs. Adams, 27 Fla., 443, 9 South. Rep., 2.
Reference
- Full Case Name
- Philip Tischler v. Apple & Finley
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- 14 cases
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- Syllabus
- 1. The mere objection to a question, not followed by an excejition to the decision of the court overruling the objection presents no question for review in the appellate court. In order that the party objecting to the question may avail himself of such an objection, it is necessary that an exception be taken and noted in the record to the ruling of'the court. 2. A building contract required the contractors to run cornice in twenty-five rooms. The owner of the building selected twenty-five rooms to be corniced under the contract, and the contractors ran cornice therein. In a suit by the contractors for extra work in running cornice in.halls and other rooms, one of the contractors was asked, “ did the selection include the halls and store rooms in which the cornices are charged for as extra Held, not error to permit the question to be asked. 3. The rule that a party has no right to cross-examine any witness except as to facts and circumstances connected with the matters stated in his direct examination, and if he wishes to examine him as to other matters, he must make the witness his own, is recognized in this State.- 4. Where a question propounded on cooss-examination has been improperly excluded, but the record affirmatively shows that the party objecting was not prejudiced by the ruling- in excluding the question, the error is harmless, and will not be cause for reversal of the judgment. 3. The same weight is accorded to the findings of fact by a referee as is given to the verdict of a jury.