Witherspoon v. Price ( 1871 )

.By the Court.

McMillan, J.

This action is brought to recover the value of certain labor done upon a farm, and in repairing a house, and for materials furnished for such repairs. The case was commenced before a justice of the peace, where judgment was rendered for the plaintiff for $31, and costs. The defendant appealed to the district court upon questions of law alone.

The district court affirmed the judgment of the justice, and the defendant appealed from the judgment of the district court.

From the testimony before the justice, it appears that about the 1st of April 1870, the plaintiff rented of one Case, a farm, called the Andrews farm ; that while in possession he plowed twelve acres, which was worth $1.50 per acre; repaired the house worth $13, and furnished materials for such repairs worth $4. Upon the trial before the justice the plaintiff testifiedithat Elijah Case told him he had a letter from the defendant, and that the defendant wanted to know if he could make arrangements to go on the Andrews farm; that he had bought thpjplace, and would like to move on to it; the plaintiff also testified that he wrote to Mr. Case a letter, telling him the taqjns on which he could have the place. Case testified that .he received the letter mentioned, and sent it to the defendant. The plaintiff called upon the defendant in court to produce said letter ; the defendant'was sworn and testified that he had received a letter-; that he did not know where said letter was that for aught he knew it might be in Wisconsin. The justice, thereupon, admitted parol evidence of the contents of the letter ; the plaintiff testifying that the contents of the letter were substantially as follows :■ “ That the defendant can have possession of the Andrews place, which was rented and occupied by him, by assuming the rent-, and paying him for plowing and repairs done by said plaintiff.”

It appears expressly from the amended return of the justice, that the admission of parol proof of the contents of the letter was objected to by the defendant, but no exception was taken by the defendant to the ruling of the court upon the objection.

The admission of parol proof of the contents of this letter was the only ground upon which a reversal of the justice’s judgment was asked in the district court. As no exception was taken to the ruling of the justice admitting this parol evidence, the defendant must be held to have waived an exception, and assented to the admission of the testimony. The decision of the justice upon this point, to which the party might have excepted, (see sub. div. 11, sec. 7, ch. 65, Gen. Stat.) cannot be reviewed in the absence of an exception to his ruling.

The evidence, although somewhat indefinite, would seem to show that defendant yielded his possession of the premises during his tenancy to the defendant, upon the understanding that the latter was to pay for the plowing and repairs.

Judgment affirmed.