Watson v. Race , 46 Mo. App. 546 ( 1891 )

Gill, J.

Plaintiff Watson sued the defendant Race for and on account of certain services as architect, consisting of some preliminary sketches and drawings for a block of flats about to be erected by the defendant, Mrs. Race. The issues were tried before the court, without the aid of a jury, when finding and judgment was for defendant, and jflaintiff appeals. The matters of complaint are thus pithily expressed by plaintiff’s counsel. It is urged that “the court erred in refusing testimony offered by plaintiff; that it erred in admitting the cross-interrogations and answers thereto of Broad-well ; that it erred in refusing to pass on declarations of law offered by plaintiff ; that it erred in refusing to allow counsel for plaintiff to argue the case both on its merits and on motion for new trial, and that the court decided the case against the law and the evidence.” We proceed to notice these objections in the order named.

I. As to the rejected evidence, the court first refused to permit plaintiff to testify as to a certain conversation lie had with Dr. Ewing. In this the court was correct. Ewing could not bind Mrs. Race by any statement or admission, as it was not shown that he was agent for her in the matter referred to. That Dr. Ewing was the relative of the defendant, or that he had in some way prior thereto acted as her agent in the construction of another building, did not establish an agency in the matter of the building then about to be erected. Further along plaintiff, while on the witness stand, was asked, “Do you know whether or not Col. Broadwell had been acting as the agent of Mrs. Race before you were sent to him.” This was objected to, objection sustained, and of which complaint is now made. If the object of this question was to elicit facts tending to show a general agency existing between the defendant and Broadwell, then an answer should have been permitted. If, however, it was sought thereby to show that Broadwell had acted as agent for Mrs. Race in another matter from which it was to be concluded he was her agent in the matter under investigation, then the evidence was, as already said, properly rejected. However this may be, we cannot discover that any harm resulted to plaintiff from the court’s action in this regard, since it appears the trial judge was fully informed by other evidence in the case just what relation existed between Mrs. Race and said Broadwell.

II. The next objection relates to the deposition of M. M. Broadwell, taken by consent of parties on interrogatories by defendant and cross-interrogatories by plaintiff. This testimony was directed to the question of Broadwell’s agency, whether he was authorized by Mrs. Race to employ plaintiff to draw the plans, etc. At the trial defendant’s counsel attempted to read entire Broadwell’s deposition. Plaintiff’s counsel first objected to certain of defendant’s interrogatories for the alleged reason that the questions were “leading and calling for a conclusion of the witness.” The court sustained said objection. Defendant’s counsel then proceeded to read the remainder of the deposition, including the questions and answers propounded and elicited by plaintiff. Counsel for plaintiff objected to this, denying the right.of the defendant to use any of the plaintiff’s cross-interrogatories and answers thereto for the sole reason assigned, that such was plaintiff ’ s evidence, that he did not offer them, and that defendant had no legal right thereto. This objection, so made by plaintiff’s counsel was overruled, the cross-interrogatories and answers' thereto were read by defendant’s counsel, and plaintiff saved an exception. This point must be decided against the plaintiff. It seems to be settled that the deposition taken by one party to a cause may be used by the other notwithstanding it is not read by him at whose instance it was taken. A deposition taken and filed in the cause is the common property of the litigants therein, and either is entitled to use it, if otherwise competent. Green v. C Chickering, 10 Mo. 109 ; McClintock v. Curd, 32 Mo. 411. And it is held in a late Minnesota case that the party putting interrogatories or cross-interrogatories in the deposition of a witness may decline to read the same with anwers thereto, but, if he do, then the other party may read them. Byers v. Ober stein, 44 N. W. Rep. 129.

Plaintiff’s counsel further attacks the admission of this testimony on other grounds than those urged in the lower court. Clearly he cannot be heard here for the first time on such objections. The only ground for excluding such testimony, as presented in the circuit court, was that plaintiff did not offer the evidence, and, therefore, defendant could not.

III. The next error assigned is that the trial judge refused to pass on declarations of law offered by the plaintiff. As to this complaint, as well as to some others we shall presently notice, plaintiff’s counsel, in brief and argument, have gone beyond the facts as stated in the record. We are bound absolutely by the bill of exceptions ; to that alone we must look for the occurrences at the trial. At the conclusion of the evidence the statement in the bill of exceptions proceeds as follows : “Whereupon plaintiff’s counsel arose to address the court, and the court declined to hear him make an oral argument in the case, whereupon defendant’s counsel offered to addréss the court, which offer was also declined. But the plaintiff’s counsel was requested to state the points merely that he relied upon to recover, and he did so, whereupon the court briefly reviewed the evidence, and while doing so agreed to the statement of plaintiff’s counsel as to certain propositions ot law ; but said, further, that the law as stated did not apply to the facts of the case as shown by plaintiff’s own testimony, and thereupon decided the case in favor of the defendant. Thereupon, immediately, plaintiff ’ s counsel requested the court to pass upon certain declarations of law, which declarations were already prepared, which the court declined to do, for the reason then announced that they were not presented before the court had announced and indicated its decision in this case, as required by tlie rule, now numbered 13, but originally numbered 12, of the court, adopted by all the judges of this court, and enforced since the beginning, of January term, 1890, of this court, which said rule was in words and figures as follows: “13. Attorneys must have their declarations of law' to be asked of the court ready to be passed upon by the court as soon as the evidence closes upon all issues and mat-' ters in the cause that ought to have been reasonably anticipated, and, in all cases tried by the court sitting as a jury, declarations of law must be submitted to the court before its decision is announced or indicated.”

This record (which to us imports absolute verity) exhibits no denial of right to the plaintiff in the matter now complained of. Section 2188, Revised Statutes, 1889, in terms provides that “when the evidence is concluded, and before the cause is argued or submitted to the jury, orto the court sitting as a jury, either party may move the court to give instructions on any point of law arising in the cause, which shall be in writing and shall be given or refused.” The rule of the Jackson county circuit court above quoted, and incorporated in the bill of exceptions, is a reannouncement of this statutory provision. This record shows that plaintiff did not offer his instructions “before the case was argued or submitted * * * to the court sitting as a jury,” but afterwards. Such declarations of law, then, were not presented in time, and the trial court was authorized in its refusal to consider the same. Morehouse v. Ware, 78 Mo. 100, 103.

IV". Plaintiff’s counsel has, in brief and oral argument, urged with much earnestness and ability that we reverse this cause on the alleged ground that the trial court denied him an oral argument. However eloquent and forcible the argument here, and however pertinent and strong the authorities which have been so diligently searched out and so ably presented, we are not called upon to give our views on this point for the reasons patent on the record; first, that no exceptions were saved at the time, and, second, that the trial court was not, in the motion for a new trial, called upon to correct its own errors, in this regard. The bill of exceptions shows that the court permitted only “a statement of points” by plaintiff’s counsel, denying an oral argument, but the record fails likewise to say that exception to the ruling of the court was saved. Nor in a motion for a new trial was anything whatever said about the court’s action in this matter. It is plain, therefore, that we are precluded from a consideration of the question.

Y. As to the other point, that the finding and judgment of the trial court were wrong on the facts, it is only necessary to say that there is ample in this record to justify the court’s finding, and we must, therefore, decline to disturb its judgment. The said judgment is, therefore, affirmed.

All concur.