Opinion of the Court, the
Hon. George W. Wall, Judge.The appellant brought assumpsit against the appellee to recover for personal services rendered in superintending certain, building operations conducted by the appellee; also for the use of his team and for money advanced by him for benefit of appellee.
It was denied by appellee that appellant performed any services as alleged, or that he made such advances, and it was claimed that in the transactions referred to, he was really carrying on the operations for himself, though the contracts were in the name of the appellee; that the brick used in the buildings was furnished by appellee, and that appellant owed therefor to appellee about $1,900.
A trial by jury resulted in a verdict for the appellee, and judgment was rendered against appellant for cost. The evidence was conflicting. That for the plaintiff strongly tended to sustain his position. That for the defendant was as positively the other way as to all the work superintended by the plaintiff (except the sewer and a cistern which the defendant conceded were built by it), and it was shown that the plaintiff, instead of being the superintendent, was himself the contractor in fact, and was indebted to the defendant for the brick used in the various buildings. It was for the jury to settle this conflict. As to all, except the sewer and the cistern, that ivas the issue. Was the plaintiff acting for himself or for the defendant ? If the former, he owed the defendant a large sum for brick. If the latter, the defendant owed him a large sum for labor, use of team and money advanced. We are at a loss to see howT a jury could have found the issues for the defendant without also allowing the defendant under its plea of set-off, at least $1,800 for brick.
Considerable complaint is made that the case was unduly hurried, and that the trial was pressed until a late hour Saturday night, when the jury was sent out to consider of their verdict.
It is certainly to be desired that the deliberations of juries should be free from circumstances calculated to prevent a full and fair consideration of the matters committed to their decision. After a long trial it is to be expected that some or all of the jury will be fatigued, mentally as well as physically, and. if at the hour' when .they, and most men are accustomed to sleep, they are forced to decide the case, it would not be strange if they failed to decide it correctly.
It is better to let them rest, as the judge himself Avould Avish to do if the jury had been A\raiAred, before proceeding to a decision. The conduct of the case in this respect, as in many others, is so far Avithin the discretion of the court, that an appellate tribunal Avould not he Avarranted in setting aside the judgment for this reason, unless it Avas quite apparent that the action of the court had unduly prejudiced the rights of the appellant. We are unable to say that such Avas the case here, though we are someAvhat impressed AArith the suggestion that the jury Avere not so deliberate, and perhaps not so accurate as probably they Avould have been under less pressure.
It is also urged that the court erred in refusing to require the defendant to produce certain books and papers relating to the transactions involved in the controversy. Notice Avas given to produce these matters in eAddence, but the court ruled that the failure to do so, onhr gave the plaintiff the right to offer secondary evidence of their contents. Our statute, section 9, chapter 51, provides that the several courts shall have power in any action pending before them, upon motion and good cause shoAvn and reasonable notice thereof given, to require the parties, or either of them, to produce books or Avritings in their possession or poAArer, Avliich contain evidence pertinent to the issue. This statute Avas designed, no doubt, to invest courts of laAv especially AAdth more poAver than they usually exercised in reference to the production of priArate writings. Courts of chancery had ahvays quite freely exercised coercive authority in this respect.
In the latter tribunals, the pleadings seeking such relief Avere usually, if not always, under oath, and in proceedings at law, where the authority was exercised rarely and with cautious limitations, the application was supported by the affidavit of the party showing the circumstances. 1 Green. Ev., Sec. 559.
Evidently, such power should he used with circumspection, lest it he abused, and the statute requires “ good and sufficient cause shown” as a prerequisite. No such cause was shown hero, unless it can be said it was apparent, from the circumstances and the proof already developed in the course of the trial. We are disposed to hold that such showing ought to be by affidavit particularly pointing out the necessity and propriety of the desired order, so the court can see that the applicant really needs it to enable him to fairly present his cause of action, or his defense, and that the application is for no improper or ulterior purpose. We find no error in the action-of the court in this respect.
It is objected further, that the court erred in permitting the defendant to offer certain entries in the books, as evidence in their behalf, and in permitting the bookkeepers, Newberg and Harvey, to testify as to the contents of other portions of said books. It appears that these books were not really books of original entry, but were nothing more or less than ledgers, as to most, if not all, of the entries. Newberg knew nothing as to the truth of the entries, nor did Harvey.
It is not vigorously insisted, by counsel for appellee, that the ruling upon the points was free from error, but it is urged that, “ as the appellee’s entire claim, as shown by the books, was disallowed by the jury, the appellant was not harmed by the ruling.”
It should be remembered that the vital issue was whether the plaintiff was working for himself or for the defendant. It will not do to assume, because the jury did not find for defendant on the plea of set-off, or, as counsel puts it, disallowed the claim of the appellee, that the evidence offered by the books was disregarded and had no effect in producing the verdict. Those books showed rebates on various jobs and charges for brick, and, in fact, were, throughout, strongly in support of defendant’s theory of the case, that the plaintiff was the real contractor.
It is impossible to say the jury were not influenced by such proof; but, on the contrary, it is almost a certainty that it had considerable weight with them.
Of course, as heretofore noticed, the verdict was inconsistent with either theory of the case, but this evidence tended very decidedly to disprove the plaintiff’s theory and no doubt it was more or less effective in that direction.
Objection is urged as to the modification of the plaintiff’s instructions, but the point is not very forcibly presented, and upon reading all the instructions in connection with the evidence, we do not find any substantial cause of complaint.
It is also urged that in numerous instances, the court sustained objections to questions asked by the plaintiff, and overruled objections to those asked by defendant. There are so many of them that it would be impossible to notice them in detail, and after carefully reading the abstract, we are unable to say that on the whole any grave error appears.
Some pertinent questions put by appellant were indeed overruled, but we can not say that the matter they called for was not elicited by other questions, and many questions which were leading in form and were merely repetitions of others, were allowed. All these matters are largely within the discretion of the trial court and error can not be successfully assigned thereon unless it is probable that some harm resulted. As the case must be again tried, it is to be presumed these causes of complaint will not be repeated. Hence, it is not necessary to dwell further upon the point.
For the error above indicated the judgment will be reversed and the cause remanded.