Lustbader v. Ulman

Briscoe, J., delivered the opinion of the Court. The plaintiff sued -the defendants, in the Baltimore City Court, in assumpsit, to recover a balance due for certain work done and materials furnished by the plaintiff in making certain repairs and alterations to a house or building, owned by the defendant, under an oral contract, and also for certain extra work and materials done thereon, at the request of the defendant. These additions and improvements were to be made to a building owned by the defendants, and known as bio. 304 W. Biddle Street, Baltimore City. A statement and account attached to the declaration shows the contract price for doing the work to have been $4,800, and the cost for certain extra work and materials was $703.50, making the entire claim $5,503.50.

The sum of $4,600 appears to have been paid upon the claim, leaving an alleged balance of $903.50 for which this suit was instituted. The plaintiff submitted to a judgment of non pros as to the defendant, Mollie Lustbader, and it was so* entered. In the course of a trial before a jury, a verdict was rendered in favor of the plaintiff against the remaining defendant for the* sum of $903.50. From a judgment entered on the verdict, this appeal has been taken.

There are two bills of exception in the record, one of which is from the ruling of .the court on evidence, and the other presents the action of the court in rejecting the defendant’s first prayer and in overruling the defendant’s special exceptions to the granting of the plaintiff’s first, second and third prayers. ⁶⁵³ The first exception, and the only one, to the ruling of the court upon testimony, was to the following question asked the defendant’s witness, O’Connor, a builder, who had been engaged in the building business for fifty-one years: “Q.-Now, Mr. O’Connor, I want you to tell tbe gentlemen of tbe jury whether or not you consider this, job as done a safe one, or a safe house to live in?” An objection to this question by tbe plaintiff wasi properly sustained. Tbe testimony sought to be elicited by tbe question was irrelevant and immaterial, and could not bave reflected upon the questions at issue in the case. Tbe work consisted of repairs, to the. house and a rear addition thereto. Whether the house was a safe one to live in was not essential or material to the issue in the ease.

The witness, however, subsequently testified, without objection, that be found tbe work very defective and against tbe building cost, in quite a number of instances. So it is clear tbe defendant suffered no injury by the ruling set out in the first exception. Nat. Bank of Washington v. Mordecai, 133 Md. 419 ; Duvall v. Ridout, 124 Md. 198 ; Packard Iron & Metal Co. v. Pearl & Co., 139 Md. 498 .

A1 the close of the testimony, the court granted the plaintiff’s first, second and third prayers. The defendant offered two prayers. The first was rejected and the second was conceded and granted. The defendant excepted to the action of the court in refusing his first prayer, and in overruling certain special exceptions to the plaintiff’s first, second and third prayers, and this constitutes the second bill of exception.

The defendant’s first prayer was properly refused. It was a demurrer to the evidence, and asked the court to instruct the jury that there was no evidence in the case legally sufficient to entitle the plaintiff to recover, and their verdict must be in favor of the defendant. : ¡,. ,r¡,- There was evidence tending to support the theory of -the plaintiff’s- case, and this being so, it was the duty, of the court to have submitted the facts for the determination of the jury. The weight and value of the evidence, as.disclosed by the record, in support of the plaintiff’s ease, was for the con