T. N. Waul v. James Hardie, 17 Tex. 553

Wheeler, J. It would have been more regular, had the Court caused the Clerk to enter the indorsement of the filing Oj upon the exhibit accompanying the petition, now for then, before permitting it to be read as a part of the petition (14 Tex. R. 327.) But the Court doubtless proceeded upon the principle of considering that as already done, which ought to have been done. The error complained of was, at most, but an irregularity in practice, and not of a character to require the reversal of the judgment.

There is little doubt that it was the intention of the defendant to object to the reading in evidence of the answers of the witness Rogers, to the second and third interrogatories. But the objection appears, by the bill of exceptions, to have been to the answer to the first and second. To the first there could be no valid objection, as it is simply as to the witness' acquaintance with the parties to the suit. But the objection to the answer to the second interrogatory, that it was irrelevant, appears to have been well taken. It is not perceived that the answer has any relevancy to the issues.

It neither conduced to establish the contract, nor the fact, or manner of its performance. That the defendant may have expressed himself well pleased with other work done by the plaintiff, and that it may have been well done, did not conduce in any degree to prove that the work done for the defendant was executed in a like workmanlike manner. It was not legal evidence of the manner in which the work in question, had, in fact, been performed. A party has a right to have none but legal evidence submitted to a jury.

And where that which is irrelevant has been admitted, against the objections of the party, if it may have had an improper influence upon the jury, it will require a reversal of the judgment. It would, perhaps, be too much for this Court to say, that the answer of the witness did not have such influence. But it is not necessary to express a definite opinion upon this point, as there is another ground upon which the judgment must be reversed ; that is, the refusal of the Court to give instructions asked bv the defendant. It is not questioned that the instructions asked were correct in point of law.

But it is said they had no proper application to the case,—were mere abstract propositions. We cannot so regard it. There was apparent conflict of evidence. Without intimating an opinion as to the preponderance or weight of evidence, (as the case will be remanded for a new trial,) it can not be denied that there was evidence tending to show that the work was not executed in a good and workmanlike manner ; and certainly an instruction, as to the legal effect of the want of the exercise of proper skill in performing the work, was not irrelevant, or inapplicable to the evidence.

Again, there was evidence conducing to prove that the defendant sustained damage, in consequence of the want of proper skill in performing the work ; and surely he had the right to have the jury instructed as to the law applicable to the evidence. The instructions refused were the undoubted law, as applicable to certain of the evidence in the case ; and the defendant unquestionably had the right to have the benefit of the instructions. They did not, of course, embrace all the law of the case, but that was no reason for refusing them.

Nor could the Court rightly refuse the instructions, on the ground, that the defendant had accepted and approved of the work. That was a question for the jury.

It was for them, and not for the Court, to decide whether there had been such acceptance; whether sufficient time and opportunity had been afforded the defendant to judge of the character of the workmanship, and whether he had accepted the work with a knowledge of its defects ; or whether, in his supposed approval and acceptance of it, he was laboring under a deception, or mistaken opinion of its capabilities, occasioned by the manner in which the attempted test had been applied, and without having had sufficient time and opportunity to ascertain its deficiency.

The evidence of the supposed acceptance of the work is furnished by the defendant's letter and conversations, shortly after the machinery was put in motion. At that time he appears to have been well satisfied with it, and sanguine as to its performance. But if the witnesses are to be credited, he must have entertained very mistaken opinions.

Whether he had had sufficient opportunity to test it and judge of its capabilities, or had been deceived, and induced to believe that it would answer a much better purpose than it proved to be capable of answering, were questions to be considered, in order to determine what effect, if any, was to be given to his approval or acceptance of the work ; and they were questions for the decision of the jury. It would have "been proper for the Court to instruct the jury as to what would be the evidence and effect of an unqualified acceptance of the work ; leaving them to decide upon the fact.

But the Court could not assume the fact as conclusively established, before it was found by the jury, and make it the ground of refusing proper instructions upon the other questions in the case. We are of opinion that the Court erred in refusing the instructions asked by the defendant; for which the judgment must be reversed and the cause remanded. Reversed and remanded.