Veazie v. Hosmer

Dewey, J.

The rejection of the testimony as to the ability of Hosmer, one of the defendants, to pay his just debts at all times, furnished no ground for setting aside the verdict. It was collateral and immaterial upon the issue presented. Hilton v. Scarborough, 5 Gray, 422. The inquiries made of one of the defendants on cross-examination were perhaps equally immaterial and irrelevant, but being admitted under the latitude allowed in cross-examination, which is necessarily to some extent a matter within the discretion of the presiding judge, they are not the subject of exceptions.

The further ruling of the court upon the subject of damages cannot be sustained. It would exclude the defendants from the benefit of their specific contract to have the entire work done at a given price. The jury were instructed that “ if the contract had been only partly finished and completed, and the defendants had availed themselves of the plaintiff’s labor on the cellar, the jury would find only what that labor was reasonably worth to the defendants.” This instruction seems to omit the qualification usually engrafted in instructions, where a party seeks to recover upon a contract that has not been literally fulfilled, viz: “ that the party has acted in good faith and has unintentionally failed.” It is also objectionable in not stating the rule to be, in eases where the omission is a failure to comp’ete the work, and is capable of being remedied by additional labor or materials, to deduct from the contract price such sum as would be necessary to complete the work according to the contract.

In the case of Gleason v. Smith, 9 Cush. 485, to the instructions that the plaintiff might recover so much as bis work and labor and materials were worth to the defendant, was super-added that the jury should deduct from the contract price so much as the dam built by him was worth less than the dam contracted for. .Without this latter instruction, it was said by the court that the earlier statement could not be authorized. The question in that case was whether, with the additional instruction, the ruling could be sustained, the more proper one in such a case being that first indicated. In Snow v. Ware, 13 Met. 42, the ruling, on a careful examination, will be found to conform to the doctrine now advanced. Exceptions sustained.