Stringer v. Golden Gate Mining & Milling Co. , 13 S.D. 470 ( 1900 )

Fuller, P. J,

This appeal is from a judgment entered on a verdict of $40.25 in favor of plaintiffs on account of certain labor performed, together with damages arising from a breach of .contract with reference to the excavation of a tunnel in one of the defendant’s group of mines. The complaint, which was controverted by a general denial and payment in full upon an account stated, is as follows: “That on or about the 29th day of August, 1898, the said plaintiffs made and entered into a contract with the said defendant whereby said plaintiffs agreed to run a tunnel for a distance of fifty (50) feet at the agreed price of four ($4.00) dollars per foot. That the said defendant, agreed with said plaintiffs that said plaintiffs might run said tunnel fifty (50) feet. That the said defendant, before the completion of said contract, unlawfully made a breach thereof, and compelled plaintiffs to stop said tunnel when it had been run forty-two (42) feet. That by reason thereof said plaintiffs have been damaged in the sum of thirty-two ($32.00) dollars. That at the time of making said contract said defendant also agreed with plaintiffs that it would remove the waste rock from the work, so that plaintiffs would not be impeded or delayed in the running of said tunnel. That said defendant unlawfully violated the condition of said agreement, and delayed said plaintiffs by a failure to remove "waste rock as it was broken by plaintiffs to their damage in the sum of thirty-five ($35.00) dollars. That during the running of said tunnel said plaintiffs performed work and labor outside of the contract for said defendant, at its special instance and request, which was of the reasonable value of twenty-eight ($28.00) dollars. Wherefore plaintiffs pray judgment against said defendant for the sum of ninety-five ($95.00) dollars, with interest thereon since the 9th day of October, 1898.” At the conclusion of all the testimony, to which no objection available in this court had been offered, appellant requested the court to direct a verdict in its favor as to the cause of action for lost time, for the reason that it constitutes no element of damage; also as to the cause of action arising from the breach of contract in not allowing plaintiff to complete the tunnel, for the reason that there is no legal evidence upon which damages can be predicated; and as to the cause of action to recover for the eight days extra work, for the reason that the evidence shows a settlement in full therefor, as well as for all other damages alleged in the complaint, and sought to be recovered by this action. This request was denied, and the questions thus raised were presented to the court as reasons for the granting of a new trial, together with the additional point that “the court erred in overruling de fendant’s objection to question 31 in the direct examination of plaintiff Tuttle on his main case.” What testimony the record discloses is in narrative form, with the exception of question No. 21, which, with the objection thereto, is as follows: “Q. 21. During the time you were there, you may state if you and Mr.-Stringer lost any time by reason of the failure of the defendant to remove the waste, etc., from the face of the drift. (Objected to by defendant for the reason that on their own theory plaintiffs can claim no damages for lost time, unless they show they were able to procure employment somewhere else; otherwise, they are not damaged. Overruled, and defendant excepted.)” While it would not be presumed, for the purpose of a reversal, that the foregoing question was meant, and the objection thereto relied upon,-neither of which is set out at length in the motion for a new trial or the assignments of error, we will assume such to be the case, and dispose of the matter, although the attention of the trial court was not sufficiently directed to the point. Chandler v. Kennedy, 8 S. D. 56, 65 N. W. 439. It will be noticed that the objection concedes the pertinence of the question if plaintiffs can “show they were able to procure employment somewhere else,” and, as the question relates only to the order of proof, an abuse of discretion with reference thereto will not be presumed. 3 Jones, Ev. 811; 1 Kice, Ev. 496. As a beginning must be made somewhere, the court may allow reasonable latitude as to the order in which essential details may be brought forward, and it will be presumed, upon the record as presented, that the omitted fact, if relevant, was established. No available objection was made or exception saved which presents a question as to the theory upon which damages were estimated; and the conflicting testimony relative thereto, as well as that pertaining to the alleged settlement, which was substantially disputed by two witnesses, fully justifies the ruling of the trial court on the motion to direct a-verdict. We find nothing in the record to warrant a reversal, and the judgment appealed from is affirmed.