McClure v. King

13 La. Ann. 141

• Court: Supreme Court of Louisiana
• Decided: March 15, 1858
• Status: Published

Opinions

Oole, J.

This is a suit on a contract by which plaintiff undertook to build ten double negro quarters for defendant, for the price of $5000 according to certain specifications. Plaintiff further claims to recover of defendant $1045 for what he terms “ other” and “ extra” work.

Plaintiff annexes to his petition his account, which he credits with $2937 60.

The answer admits that the contract was made, but avers it was violated in almost every particular by plaintiff, and claims judgment for damages to the amount of $6668 63, in reconvention of plaintiff’s demand.

This case was submitted to a jury, who rendered the following special verdict: “We, the jury, find as follows, viz., that the plaintiff be allowed full compensation as per contract, and that all extra charges be deducted in lieu of damaged lumber and upon this verdict a judgment was rendered against defendant for $2062 37, and costs.

It appears to us that this verdict is not sufficiently precise and lucid, for, according to the contract, each cabin was estimated at five hundred dollars, and the jury do not inform us whether all the cabins were finished or only a part.

But besides this objection to the verdict, there is also an error in the ruling of the lower court, which must cause this case to be remanded.

The depositions of Follcwábee and Yeultle, taken by commission, constitute the whole of plaintiff’s testimony.

Follansbee's deposition was objected to, oh' the ground that he was an interested witness — he having sued plaintiff by attachment, and garnisheed King, and defendant excepted to the opinion of the court rejecting the admission in evidence of the suit of Follansbee v. McClure and R. King, gwnishee, which was offered for the purpose of showing that the said Follansbee was an interested witness in this cause.

It is true that a creditor of a party is not necessarily incompetent as a witness for him, but we think that defendant ought to have been permitted to have offered in evidence the suit of Follansbee v. McClure, in order to give the jury the knowledge of the position of the witness as affecting his credibility.

It is objected that interrogatories to Follansbee were served on the defendant, and crossed by his counsel, and no objection made to his competency, and no reservation made of any objections whatever; it does not appear, however, that the counsel of defendant was aware at the time of crossing the interrogatories of the interest of Follansbee in the event of this suit.

It is, therefore, ordered, adjudged and decreed that the verdict of the jury, and the judgment of the court thereon, be avoided and reversed, and that this cause be remanded for further proceedings, according to law, in the lower court, with instructions to the judge a quo to permit defendant to offer in evidence the suit of Lambert T. Follansbee v. James McClure; and it is ordered that plaintiff and appellee pay the costs of appeal.

Mi\ Justice Voorhies took no part in this case, on account of indisposition.