Wagner v. Ellis , 85 Miss. 422 ( 1904 )

Whitfield, C. J.,

delivered the opinion of the court.

It is insisted that the court erred in allowing the plaintiff to prove by parol the contents of the written contract between Ellis and the tenant, Paxton, which contract was in writing, and was identified on the trial as the contract by Ellis. But the answer to this is that no objection whatever was made in the court below to the parol evidence. The contract ought to have been offered regularly, and, doubtless, if objection had been made to the parol proof, the contract would have been put in evidence.

It is also objected that the court should not have permitted Ellis to testify to the contents of the written contract between Wagner and Calvin Paxton, which contract Wagner made no effort to have on the trial. The state of the record on this is as follows: No objection whatever was made, when Ellis was first examined, as to his stating the contents of this contract. After the defense had concluded its testimony, Ellis was recalled in rebuttal, and asked to repeat his testimony as to what the contract was, or, rather, what names were signed to that contract. This was to contradict Wagner, who testified that he had no contract with Calvin Paxton, but that Tom Dixon had a contract with Calvin Paxton. Then, for the first time, the defendant objected to this testimony. But Wagner had himself, in chief, stated that there was such a contract between Dixon and Calvin Paxton. This objection was overruled, and, very probably, on the ground that it was offered to contradict Wagner, and it is to be noted that the objection did not specify upon what ground it was made; it may have been made — and from the course of the trial, since Ellis’ testimony had not been objected to when it was first offered, it probably was made — on the ground that it was not rebutting testimony, in so far as it repeated his testimony in chief as to the contents of the contract. In view of this, the objection came too late, and was too general in its character. But, in addition to this, the defense had itself proved the contract between Dixon and Paxton by Wagner himself, and also Calvin Paxton, and the testimony clearly shows that Dixon was the agent on land leased by Wagner to him, and liable to Wagner both for rent and supplies. And, finally, Wagner admitted that he had made no search for the contract, or any inquiries whatever as to where it was. Under the circumstances the contract was under the control of Wagner, and ought to have been produced by him. We do not think on this state of the record that this assignment was well taken. Objections should state the ground on which they are made, and be seasonably interposed.

But the verdict was plainly excessive. It was proper to allow the value of the rent Ellis lost, amounting to $201, and it was also proper to allow the damage to the fifteen acres which were not cultivated, and grew up in weeds and briers, which would be in amount $45. The total amount which might thus properly have been allowed would be $246, but the jury rendered a verdict for $300 for the plaintiff.

If the plaintiff will remit $54, the judgment will he affirmed; otherwise the case will he reversed and remanded.