Coates v. Sangston

Tuck, J., delivered the opinion of this court. This was a proceeding by attachment, at the instance of the appellants, against Edward Cunningham, as an absconding debtor, which was laid in the hands of the appellees, who appeared as garnishees. Issues were joined on the pleas of ¹²⁹ non-assumpsit by Cunningham and nulla bono, as to the defendants. The jury having found for the plaintiffs on the first issue and against them on the second, the record was brought to this court upon an exception taken' at the trial by the plaintiffs.

It appears that Cunningham had agreed in writing, not under seal, to perform certain work on houses of the appellees, according to the specifications and upon the terms therein stated. No time was mentioned within which it was to be completed. lie commenced on the 10th of April 1848, a few days after the date of the contract, and continued the work until October of the same year, after which the witness, who occupied one of the houses during the time that the repairs were made, never saw any more of him. The work was never finished by Cunningham. By the plaintiffs’ affidavit, and their own proof, it appeared that he had run away before the 13th November 1848.

The appellees, on the 10th of November, three or four weeks after Cunningham had stopped work on the houses, employed another person to complete the repairs. The witness stated that Cunningham’s work was very badly done on the front of the house, all the frame being out of square, and the brick houses not near as good work as the house by which they were to have been done, as a pattern. Evidence was offered as to payments made by the appellees and off-sets claimed by them for loss of the rents during the time Cunningham was engaged on the work, which ii is unnecessary to state. In relation to this part of the case several questions were elaborately argued by the counsel, involving the character and obligations and remedies under the contract, which, if ruled with the appellants, would not change the decision of the appeal, we shall, therefore, express no opinion upon them.

The first point for our consideration arises upon an objection by the plaintiffs to evidence offered by the defendants. It does not distinctly appear how the question was presented below, nor, indeed, what the precise point was upon which the court pronounced its opinion, The objection was made ¹³⁰ “to the admissibility of the testimony offered to show that Cunningham agreed to do the work.” Thus broadly stated the objection covered too much, because if allowed it would have excluded the contract under which the work had been undertaken by him, which was clearly admissible. The counsel, however, have argued this point on the assumption, that the objection was made only to Cunningham’s declarations as to the time within which he had agreed to finish the work. Thus restricted, we may possibly be reviewing a point not decided by the court below, and hence the propriety of adhering to the record, for although counsel argued the-question below as they have here, the court may have overruled the objection on the ground that it embraced evidence that was competent as well as some that was not. 3 Gill, 220.

In this way injustice is sometimes done to inferior tribunals. It is not a case of defect in the record which may be supplied by agreement, but one where an exception presenting one proposition is said to have been designed to raise another. In the present case, however, we feel no difficulty on this subject, because the objection was properly overruled even when taken in the limited sense in which the appellant intended to apply it. ■ We gather from the record that it was deemed important Ho ascertain the time within which Cunningham was to have completed his work. The contract being silent on this point, the law allowed a reasonable time, which could only be ascertained by evidence de hors.

The defendants proved that Cunningham said, about the time the contract was entered' into, and afterwards, that he had agreed to finish the work in sixty days. In disposing of this point we must bear in mind the manner in which it was presented at the trial. There is no question of pleading. It was competent for the-defendants to show that they had not violated their agreement with Cunningham by engaging other persons to complete the work before the expiration of the time within which he was to have done it.

To this end they offered, by the testimony objected to, to prove that it was to have been finished in- ¹³¹ sixty days, more than that time having elapsed before it was placed in other hands. As a question, merely, of reasonable time, we do not perceive why it should have been rejected. The opinion of any expert would have been received. The fact that Cunningham had said that he was to do the work in sixty days is evidence that he considered that a reasonable time; and his opinion, if not conclusive, was surely admissible against himself.

The evidence merely tended to prove a fact, in regard to which the contract was silent. In 1 Greenlf. Ev., sec. 304, it is said to be well settled, that in a case of simple contract in writing, oral evidence is admissible to show, that by a subsequent agreement the time of performance was enlarged, or the place of performance changed; or that the agreement itself was waived or abandoned. Also, that it is competent to prove an additional, suppletory agreement, by parol, by which something is sup- V, plied that is not in the contract.