Gregory Consolidated Mining Company v. Starr/Opinion of the Court

If we pass to a consideration of the special matters of objection we find nothing which presents even technical error. It is insisted that the court erred in overruling the objection of defendant to three questions and answers in the deposition of D. H. Malter, the party who represented the iron-works in the contract. These questions and answers, numbered 6, 7, and 8, related to the time of the receipt by H. W. Child of the bill for the lumber specified in the contract, the time of its actual delivery on the ground at Gregory, Mont., and to the witness' possession of a copy of the bill of lumber so delivered. The form of the questions was unobjectionable, the answers were responsive thereto, and were not hearsay. The objections to these questions and answers are frivolous. Question No. 9 and the answer thereto, in the same deposition, are also challenged. This question was as to the time of the completion of the mill, and the fact of an acceptance. The answer was that the mill was completed about the end of February, 1884, and accepted April 18, 1884, by Charles Hesse, the superintendent of the mining company in Montana. Surely, completion and acceptance were matters which, under the contract, had to be proved; and, as the form of the question is not challenged, and the answer was direct and responsive thereto, the objection to them is no better than those heretofore mentioned. Objection is also made to question and answer No. 6, in the deposition of Charles Hesse. That question was, who accepted the mill on behalf of the company, and how was such acceptance made? and the answer of the witness was that he accepted it in writing. It is impossible to conceive of any objection to this testimony. The answer to question No. 12 in his deposition is also objected to. In that answer he testified to his estimate as to the capacity of the concentrator. It certainly worked no hardship to the defendant that the capacity was larger than that stipulated for in the contract, and it tended to prove that the acceptance, which in fact was made, was properly made.

It is further objected that the court erred in refusing to nonsuit the plaintiff at the close of his testimony. But, considering the scope of the testimony, which we have heretofore noticed, it is obvious that the court did not err in overruling such motion, and would have erred if it had sustained it. It is also objected that the court erred in refusing to receive in evidence a letter from Child, the manager, to the ironworks. As this letter contained nothing of value as tending to determine the matters in dispute between the parties, the court did not err in refusing to admit it. In so far as it referred to the details of shipment, and the difficulty of transporting the machinery to the mine, or the condition of the building, even if these matters were of any importance, it is not perceived how the defendant can make testimony for itself by simply writing a letter to the plaintiff. Mr. Child was a witness on the trial, and, if there was any fact stated in the letter which was material to the controversy, he could have been interrogated in respect to it. Another objection is that the court refused to receive in evidence four letters from Hesse to Child. These letters could not be received for the purpose of impeaching Hesse, for his attention had not been first called to them; and no letter from one officer of a company to another is admissible against another party to prove the truth of the facts stated therein. A final matter is this: In each case appear instructions, though in a case tried by a court without a jury a request for instructions seems incongruous. But, passing that by, for in the case tried by the jury instructions were proper, it is urged that the court erred in refusing this instruction: 'The jury are instructed in the above-entitled action that time in the contract sued is of the essence thereof; and that, if you find that the failure to fulfill the contract in time was without fault of the Gregory Consolidated Mining Company, then plaintiff cannot recover, and you must find for defendant.' The only stipulation in the contract as to time was that heretofore referred to for completion within four months from date, provided the lumber reqire d should be delivered on the ground within 40 days after the receipt of the bill therefor by Child, the representative of defendant. The testimony establishes the fact that this bill was delivered to Child within a day or two after the signing of the contract; and the only testimony in respect to the delivery of the lumber makes it clear that it was not delivered within 40 days thereafter. The stipulation for the completion of the work within four months became, therefore, inoperative, and that through no fault of the iron-works. An instruction like that asked was misleading and improper. It is obvious from these considerations that the proceedings in this court were for delay. Under clause 2 of rule 23 of this court it is ordered in No. 356, a supersedeas bond having been given, that the judgment be affirmed, and that 10 per cent. damages, in addition to interest, be awarded. In No. 357, as this court has no jurisdiction by writ of error over the proceedings, all we can do is to dismiss the case, and such is the order.