Nesbitt v. L. C. & C. Rail Road

Citations

• 29 S.C.L. 697

Syllabus

<p>1. It is generally true, that if incompetent evidence be received without objection, it must go to the jury ; but two things must occur : 1st. That the party against whom the testimony is offered, might, when offered, have objected to it; and 2nd. That when received, it makes a case on which the jury may legally find for the plaintiff</p> <p>2. Where a plaintiff, claiming compensation for extra services, rested his claim altogether on a quantum meruit, and undertook to shew, by the adduction of parol proof, that he was entitled to recover; but as his last piece of evidence presented a written contract between himself and the defendant, the latter had the right to read the contract, and say that the evidence offered is inconsistent ifith it, and therefore incompetent. And even admitting that plaintiff’s testimony, out before, Could not be objected to for incompetency, the defendant had the right to say that the written contract shewed that all the work about which plaintiff’s testimony was given, was to be done under the contract — that it was not extra, and that the quantum meruit failed, thus presenting what would be equivalent to a demurrer to evidence, upon which the court would have the right to order a non-suit.</p> <p>3. To the granting of a non-suit, Under such circumstances, it is no objection that parol proof to explain, vary or contradict the written contract, was received without objection.</p> <p>4. Plaintiff suing for extra compensation on a quantum' meruit, was bound under non-assumpsit pleaded, to shew facts from which a promise, express or implied, could arise. Where a writteen contract was shewn, if it covered the work done, he failed to make a case entitling him to recover, unless he had shewn that his verbal evidence went to construe the written contract, so as to entitle him to regard the work as extra, or unless he had established a legal, verbal, express contract.</p> <p>5. A contractor with the Louisville, Cincinnati and Charleston Rail Roa