Rikerd Lumber Co. v. Hoertz

Grant, J.

{after stating the facts). 1. Seven errors are assigned upon the rulings of the court during the trial. To six of these rulings no exceptions were taken. They therefore cannot be considered. Selby v. Railway, 122 Mich. 311. The ruling to which exception was taken related to the testimony of plaintiff’s superintendent, who testified that he knew something about the plans of the building, and that he figured the work for the plaintiff. The question was then asked: “ Now, will you tell the jury what was figured in that work ?” The question was objected to as immaterial, the question being not what he figured, but “ what the contract called for.” The witness had had no conversations with the defendants, and knew nothing about the contract, except what the plaintiff’s president told him. The testimony was properly excluded.

2. Errors are assigned upon portions of the charge. The instructions completely covered the claims of both parties. The court fully and fairly stated the theory of each, and then instructed the jury that if the contract did not include the items in dispute, the plaintiff was entitled to recover $119.84; but that if they were included in the contract, it could not recover. There was no error in the charge read in its entirety.

3. After suit was commenced, negotiations were entered into for a settlement. Upon the theory that a compro? mise was agreed upon by which the defendants were to pay plaintiff $84 in settlement, they inclosed their check for that amount to the plaintiff. The plaintiff at once returned the check, denying that such a compromise was made. The court instructed, the jury:

‘ ‘ If you find from the evidence that these parties in an effort to adjust their matters met together, and went over their claims and agreed upon the terms of their contract, and what was included within the contract, then the agreement would be binding upon them, but if they met for the purpose of an adjustment and made concession, not because they admitted the contract required the concessions, but in order to reach a settlement of their matters, and a settlement was not consummated, then concessions made under those circumstances would not be binding upon eitheir party to the case.”

The instructions were correct. It was evident that the jury determined that no compromise was made.

The judgment is affirmed.

Blair, Montgomery, Ostrander, and Hooker, JJ., concurred.