Newton v. Globe Indemnity Co.

93 N. J. L.

Alexander H. Nelson, a civil engineer, whose competence as an expert engineer was admitted, testified that he was county engineer of Atlantic county, and was examined, inter alia, as follows:

"Q. Now, did James B. Reilly, between the 20th day of March, 1914, and the 31st day of July, 1914, repair all defects in the said roadway arising from defective workmanship or material, ordinary wear and tear excepted?

"A. He did not.

"Q. You have said that you made an estimate of how much it would take to make those repairs?

"A. I did.

"Q. Will you now tell us what that estimate was?

If a contractor and builder qualifies himself as an expert he may give testimony as to the cost of repairing a building. Higgins v. L. A. Gas and Electric Co., 159 Cal. 651. See, also, Frick v. Kansas City, 117 Mo. App. 488. Obviously, a county engineer, who qualifies as an expert civil engineer, may give testimony as to the estimated cost of repairing a road.

It is true that Mr. Nelson, on cross-examination, gave testimony contradictory to what he had said about the period concerning the repairs, but that only discredited his former testimony and left it open to the jury to find the fact. It does not permit us to say as matter of law that the latter statement must be taken in exclusion of the former, and that, therefore, there is no evidence of want of repairs during the period covered by the bond and no evidence of the amount necessarily required to make them.

This case is not like that of Jeffers v. Johnson, 21 N. J. L. 73, where the covenant to indemnify and save harmless was from all damages, &c., which the obligee might or should be put to or in anywise be called upon to pay, for and on account of being surety for the postmaster of Salem. On the trial the plaintiffs, obligees, proved the record of a judgment in the case of United States v. Elwell, the postmaster. But

93 N. J. L.

Newton v. Globe Indemnity Co.

the court charged the jury that in order to recover on this covenant of indemnity, the plaintiffs must show that they had paid the debt, and this was upheld. There the obligees were not put to loss, unless and until they made a loss by paying their principal's debt. Here, the plaintiff, Newton, has been put to loss, because $1,500 of the money he was entitled to receive on the contract between Reilly and the freeholders was retained and kept from him by the freeholders by reason of Reilly's very default against which the bond. was given as security.

Nor is this case like that of Miller v. Fries, 66 N. J. L. 377, where the condition of the bond was to save and keep harmless the obligee from all debts and liabilities existing, &c. The only fact assigned and proved as a breach was that one of the debts had passed into judgment. But the court held that such a covenant was not the equivalent of one to pay debts, and that, consequently, no damages could lawfully be awarded on such an allegation of breach. There was no proof of loss against which the bond was given as security. Here, as stated, the loss has occurred. Newton, the obligee, did not have to pay anybody anything in order to recover on the bond. He was damnified if Reilly did not repair the road, and he, Newton, was put to loss if he did not. Reilly did not repair and Newton was put to a loss of $1,500 because of Reilly's default. This is directly within the covenant.

This case was submitted on briefs, and while there are several exceptions relating to the charge, one only is argued by the defendant-appellant to be erroneous. It is, that the judge told the jury that the defendant company was not represented at the settlement between the plaintiff and Reilly and the county; that defendant would not, therefore, necessarily be bound by the arbitrary deduction of money from Reilly or his assignee, unless based on an honest understanding of what sum was actually necessary to do the work on the road that Reilly was required to do under the bond. This, we think, was error, because the defendant, not being a party to the agreement, was not bound by anything they did;

Newton v. Globe Indemnity Co.

93 N. J. L.

but as there was competent evidence to justify the verdict, namely, that the repairs had not been made and that it would cost $1,500 to make them, this phase of the charge was harmless, and, therefore, not ground of reversal.

The motion to direct was rightly overruled; the admission of illegal testimony, and the erroneous charge, were harmless. The judgment should, therefore, be affirmed.

BERGEN, J. (dissenting). My vote to reverse is based upon my conclusion that there was no sufficient proof, which the jury ought to consider, to show the damages which the plaintiff suffered. The only proof is that the county engineer estimated that $1,500 would cover the cost of the repairs required, and this amount was agreed upon by the plaintiff and the county. The defendant is not bound by the agreement between the plaintiff and the county based upon an estimate of the county engineer. There should have been proof of the extent and character of the necessary repairs, and the question of cost determined by the jury who are not bound by the conclusion of the two interested parties in which the defendant did not participate. Parties claiming the breach of a bond cannot fix the damages. The obligor is to pay only when the extent of the repairs indemnified against are proven, which was not the case here. The plaintiff was making a settlement with the county for his neglect to repair and allowed $1,500 as the estimated cost, and the liability of the obligor cannot be fixed by the agreement of the parties who are antagonistic to the obligor.

For affirmance-THE CHANCELLOR, CHIEF JUSTICE, SWAYZE, TRENCHARD, PARKER, MINTURN, KALISCH, BLACK, WHITE, HEPPENHEIMER, WILLIAMS, JJ. 11.

For reversal-BERGEN, TAYLOR, GARDNER, JJ. 3.

STATE OF NEW JERSEY, PLAINTIFF IN ERROR, v. FRANK E. TAYLOR, DEFENDANT IN ERROR.

On a

Argued March 4, 1919-Decided June 20, 1919.

trial for conspiracy defendant was asked questions which sought to establish that his co-conspirator was addicted to the excessive use of liquor, and to such an extent that he would be incapacitated for weeks at a time, during which he was mentally incompetent and incoherent, and that these facts were known to the defendant before and at the time it was alleged that he entered into the conspiracy with him, the purpose being to have the jury pass on the question as to whether or not it was probable that the defendant would make such a combination with such a man. The trial court overruled the questions, but this was reversed in the Supreme Court on error. Held, that the questions asked were incompetent, and that the judgment of the Supreme Court should be reversed, to the end that that of the trial court be affirmed.

On error to the Supreme Court, whose opinion is reported in 92 N. J. L. 135.

For the plaintiff in error, J. Henry Harrison, prosecutor, and John A. Bernhard, assistant prosecutor of the pleas.

For the defendant in error, Wilbur A. Heisley.

The opinion of the court was delivered by

WALKER, CHANCELLOR. The defendant was indicted with one Cowan for conspiracy to defraud the board of chosen freeholders of the county of Essex by falsifying the record of jurors whereby they received certain jurors' pay from the county. The record is voluminous and contains many assignments of error and specifications of causes for reversal. The entire proceedings were brought up by the writ of error.

The Supreme Court dealt with the various objections made, and found no trial error in the record, save one, and that is, that certain questions by which it was sought to be shown

that Cowan, defendant's co-conspirator, was addicted to the excessive use of liquor; went on protracted sprees, and was, therefore, a person with whom defendant would not have been likely to enter into a conspiracy, were excluded by the trial court. We agree with the Supreme Court in the conclusions it reached on all the objections made by the defendant except this one; and as to this one, we think that court erred.

The Supreme Court observed in its opinion:

"Assignments 22, 23, 24 and 25 relate to the exclusion, by the court, of questions asked of the defendant by his counsel, which sought to establish by this witness that Cowan was addicted to the excessive use of liquor, and to such an extent that he would be incapacitated for weeks at a time, during which he was mentally incompetent and incoherent, and that these facts were known to the defendant, before and at the time it is alleged that he entered into a conspiracy with Cowan to defraud the county. The purpose of offering this testimony, as stated to the trial court, by defendant's counsel, was to have the jury pass upon the question, as a matter of fact, whether or not it is probable that a man in his right senses would make such a combination with a man whom he knows to be for weeks at a time out of his head by the use of intoxicating liquors.'

"We think the testimony offered was competent, and that its exclusion was error prejudicial to the defendant."

It is noteworthy that no authority is cited for this novel doctrine; nor is any furnished with the brief of counsel for defendant to support it.

To permit Cowan's dissipation to be shown would have been to import another and irrelevant issue into the case, a thing forbidden upon familiar principle.

In Best Pres. L. & F. 211, it is laid down that according to the general rule it is not competent to give evidence of the general character of the parties to forensic proceedings, much less of particular facts not in issue in the cause, with the view of raising a presumption either in favor of one or disadvantageous to his antagonist.