Gordy v. Veazey

25 La. Ann. 518

• Court: Supreme Court of Louisiana
• Decided: June 15, 1873
• Docket: No. 810
• Status: Published

Opinions

Morgan, J.

Plaintiff took his bill of exception to the ruling of the •court which, permitted ihe defendant to establish by witnesses the value of certain items of the work sued for by plaintiff on the ground that having sued lor the value of the work as a whole, without setting any specific value on the separate items of the work, and the defendant having substantially accepted in his answer the issue presented, the testimony offered was not confined to the issue, but was calculated to take him (plaintiff) by surprise.

If the testimony offered could have the effect of taking plaintiff by surprise, this might have been a ground for applying for a continuance, but it was no ground upon which the reception of the testimony could be successfully objected to. The sum total of the bill sued on is composed of various items. It was competent for the defendant to show, by witnesses, the separate value of each of the items which made up the aggregate work in order that the correctness of (he general charge might be properly arrived at. The testimony was, therefore, properly admitted.

The second exception to the ruling of the court is to the reception of testimony on behalf of the defendant to show damages which he claimed to have sustained on account of the unskillfulness of plaintiff’s work. The objection was that the defendant was barred from offering any proof of damage after having taken possession of the building. We do not see why the defendant should be debarred from defending himself against what he considers an extravagant demand for repairs done to his property, simply because he took possession of it. He may have been unaware of the unskillful workmanship of his employe until after he had taken possession of his property. He may have been, by necessity, forced, to take possession of his property, whether the repairs were properly done or not. The evidence was properly received.

The third exception to the ruling of the court was to his' admitting the testimony of a witness to establish that plaintiff had, before the institution of this suit, presented to the defendant a bill in which he charged less for his work than the amount for which he has sued. The ruling was correct. We do not see why a defendant who is sued for ihe value of work done on his property should not be enabled to show by the plaintiff what value he placed upon the work immediately after it was completed. Neither do we know any law or see any reason why a man who presents a bill for the value of work done should be allowed, because the bill is not paid, to sue for a larger sum than the amount originally claimed. There would be some authority for this in case the stipulation was that the work should be paid for the moment it was completed — the cash might be an inducement for a diminution of price, for he who pays later, pays less. But there seems to have been no stipulation in this regard between the parties to this suit.

The fourth exception is to the time when the judgment was signed. But this exception is not referred to in appellee’s brief, and, we pre.sume, as it has nothing to stand upon, that it is abandoned.