Donohue v. Shedrick

Grason, J., delivered the opinion of the Court. This was a suit brought by the appellee, a bricklayer, against the owner of certain buildings in Baltimore City, to recover a balance alleged to be due him for laying the ²²⁸ bricks, and this appeal was taken for the purpose of having reviewed the rulings of the Court of Common Pleas of Baltimore City, upon points' of evidence raised during the trial, and in which rulings' it is alleged that there is error. The amount involved in the suit is very trifling, and the points raised in the several exceptions are very plain, and we have no difficulty in disposing of them. First Exception. — This exception was taken to the admission of the testimony of a measurer, to prove that he had measured the buildings in question by a rule adopted by the trade in the City of Baltimore, which had been tested and found to be correct, and that by the measurement so made the buildings contained two hundred and three thousand, eight hundred and fifty-four bricks.

It was contended by the appellant’s counsel that, as it was shown that the bricks were of unequal size, a correct estimate of the number in the houses could not be ascertained by the rule of measurement adopted and practiced by the trade. The evidence was certainly admissible, but it was the province of the jury alone to weigh it and give such effect to it as they might think it entitled to, and there was no error in admitting it. Second Exception. — After the evidence as set out in the first exception had been given, and after the signing and sealing of that exception the measurer was cross-examined, and then the counsel for the appellant requested the Court to incorporate in the first bill of exceptions, the evidence given by the witness upon his cross-examination, and upon the Court’s refusal to incorporate it, this exception was taken to the refusal. What the witness proved upon his cross-examination, did in nowise affect the admissibility of his evidence in chief, or change the principles of law governing its admissibility.

The only possible effect of the proof of the witness upon his cross-examination, was to weaken the force of his proof upon his examination-in-chief; and for this purpose the appellant had the ²²⁹ full benefit of it before the jury. The Court below therefore, very properly refused to insert in the first bill of exceptions, the proof given after that bill of exceptions was signed and sealed. Fourth Exception. — For the reasons already given, the Court also correctly refused to incorporate in the third bill of exceptions, the evidence given by the witness after that bill of exceptions had been signed and sealed. Third Exception. — This exception was taken to the refusal of the Court to permit the appellant to offer proof, that the brickmaker had received pay from him for only one hundred and eighty-two thousand seven hundred bricks.

This evidence was clearly inadmissible. The issue to be tried by the jury, was as to the number of bricks the appellee had laid, and not the number that the appellant had paid for. The evidence offered did not tend to throw any light upon that question, for it might be perfectly true, that the appellant might have paid for only one hundred and eighty-two thousand seven hundred