Henderson v. Murphy

47 App. D.C. 558, 1918 U.S. App. LEXIS 2456

• Court: Court of Appeals for the D.C. Circuit
• Decided: April 1, 1918
• Docket: No. 3094
• Status: Published

Opinion

Mr. Justice Kobb

delivered the opinion of the Court:

The defendant pleaded the general issue and the Statute of Limitations. Both at the close of plaintiffs’ evidence and at the close of all the evidence, defendant asked for an instructed verdict “upon the ground that the plaintiffs had not fulfilled the burden of proof that is upon tliem in order to take this case out of the Statute of Limitations.” Suit was filed January 1Í), 1915, and there was competent evidence before the jury that work on the drawings was not completed until February of 1912. The jury having accepted that evidence,' we are not at liberty to review their findings upon this question of fact.

There was testimony on the part of the plaintiffs “that on August 14, 1914, a letter, inclosing a bill for $2,500, was sent Mrs. Henderson;” that this was the first hill sent, and “the first time Mrs. Henderson was acquainted with the amount of hen-bill.” No attempt was made to prove the contents of the letter accompanying the bill.

Defendant testified in detail that when the drawings were made “it was expressly understood that witness was not to pay’’ for them), but that she, on the contrary, being interested in having the Memorial located on Meridian Hill, would do what she* could, if plaintiff Murphy would get out satisfactory plans, to have them adopted by Congress, in which event Murphy would make very large commissions. The witness was then asked what, if anv, .reply she made when she received the letter of plaintiffs dated August 14, 1914, and answered: “Oh, T called him over the phone and told him T was very much astonished — .” Here counsel for plaintiffs interposed an objection, and the court ruled that witness could testify to no more than that she refused to pay. Defendant reserved an exception on the ground that the witness should have been permitted to testify as to what she said about the bill, “with a view of showing how indignant she was and how she repudiated it, and all such questions that might occur.”

The record shows that “no claim was made by plaintiffs at any stage of tbe case that defendant had by act, omission, or word, subsequent to February, 1912, done anything from which an admission of the obligation claimed on in this suit could he inferred, and no argument that any such admission had been made was presented to court or jury.” Plaintiffs, in their declaration and particulars of demand, claimed interest from March 1, 1912, but in their counsel’s argument before the jury that claim was modified; for the court in his charge said: “In their (plaintiffs) declaration they claim it (interest) from March 1, 1912; but counsel for the plaintiffs very frankly tells you on that question of interest, if you should conclude that there should he awarded interest at all upon the amount, it ought not to he for a period earlier than August 14, 1914, the date orr which the plaintiffs for the first time, as I understood him, submitted to Mrs. Henderson a hill claiming the principal amount that I have just called to your attention.” The jury, however, allowed no interest. Inasmuch, therefore, as the scope of this item of evidence thus was limited, wo fail to perceive wherein the defendant was injured by the restriction of her answer to the question propounded to her concerning it. Had plaintiffs contended that defendant’s attitude upon receipt of the. letter and hill amounted to an admission. (Riley v. Mattingly, 42 App. D. C. 294), a different question would have been presented here.

Plaintiff Murphy testified that Mrs.- Henderson, upon the occasion of a visit to his office during the progress of the work, wrote out a check “and put it on the table,” and that after she liad gone out lie was surprised to discover it was for only $50. Witness further testified to a payment hy defendant of $52.25 for frames used on some of the drawings. Later he was asked whether, “other than the two credits” just mentioned, he had received “from .Mrs. Henderson on account of this work any other payments.” To this an objection was interposed on the ground that a legal question was involved. The court then said: “l think what Mr. Hogan (counsel for plaintiffs) is trying to find out is whether he has received any other payments whatever, than those credited on this hill.” Thereupon Mr. Ilogan stated: “That is what I asked him. T insist that my question is proper.” The court: “The question is not whether they were paid on account, in the sense that they had keen paid by way of recognition of the bill. It is only a method of directing the witness's attention to a particular transaction. He can answer whether any other payments were made. I think that is a proper question.” The question, then, which the witness answered in the negative, was “whether any other payments wore made.” He already has testified as to two payments for which credit had been given, and this question and answer in no way affected that testimony.

The judgment is affirmed, with costs. Affirmed.

Mr. Justice Man Orsdel dissents.