Oberlander v. Carstens

23 N.E. 575, 151 Mass. 18, 1890 Mass. LEXIS 130

Opinion

By the Court.

When the defendant offered to prove by the cross-examination of the plaintiff the declarations and statements of the architect, no evidence had been offered that the fasteners and openers which were the subject of the controversy were to be made to his satisfaction or approval. On the contrary, this had been distinctly denied by the plaintiff. The declarations of the architect were, therefore, properly excluded as incompetent until some evidence was offered to show that the fasteners and openers were to be made to his satisfaction. Without such evidence his declarations were simply those of a third person. If this were otherwise, as the order of the trial in the admission of evidence is in the discretion of the presiding judge, and as at a subsequent time, after evidence had been offered tending to show' that the fasteners and openers were to be made to the satisfaction of the architect, the defendant had ample opportunity, of which he 'availed himself, to cross-examine the plaintiff on this subject, it is not easy to see how he could have any ground of exception.

Exceptions overruled.