Leffler v. Allard

Cochran, J., delivered the opinion of this court. The questions presented by this appeal arise on three bills of exceptions taken by the appellant, the 1st, to the ruling of the court for the admission of evidence proposed, but not introduced by the appellee; and the 2nd and 3rd, to its refusal to admit evidence offered by the appellant. It appears from the record, that the appellee, after offering evidence of the performance of a contract, for carpenter’s work, made by him with John Levi, and also of other work, then proved that he pointed out certain portions of the whole work done, which he claimed to be extra work, to William Q,. ⁵⁵² Caldwell, who measured and furnished an account of the items pointed out, and of their value. The appellee then proposed to offer evidence, that the work specified in this account was extra, and not included by the contract.

To this offer the appellant objected, and being overruled, he then excepted. The evidence, objected'to, does not appear to have been introduced, the appellee having proved, by other witnesses,- (he admission of Levi, that the account for all the work done was correct, and his promise to pay it. Under these circumstances, the point presented, by this exception is immaterial. We think, h-oWever, that the appellant’s objection was properly overruled, and that the appellee was entitled to prove, at that stage of the case, that the