Healey v. Terry

¶1In concurring with the chief justice that a judgment must be •affirmed, I wish to say that I can find no error in the exclusion of evidence, as claimed in appellants’ first point, of custom in regard to the storage of defendant’s carriage after repairs upon it by plaintiffs were completed. The record does not show any ruling adverse to appellants upon this point. The defendant’s objection to the evidence was overruled. The appellants claim that this was a “typographical error,” and that the ruling was actually the other way, and that an exception was taken by them. Nothing of the kind •appears in the papers before us, and an examination of the case would seem to show that it is correct as it stands. There is an answer to the question which was objected to, and this could not be so if the objection to it had been •sustained. It also appears that the plaintiffs did not rely upon custom for their charge of storage, but upon special contract. Mr. Healey says: “There must have been a special contract.” He was also permitted to testify what plaintiffs’ custom was: that plaintiffs “always charge storage.” But I think the whole contention may be disposed of by the fact that, according to plaintiffs, storage was only to be charged after the customer was notified that the repairs were completed, and that was not done in this case. A notice was sent the day after the carriage was received for repairs, but none after the repairs were completed. No authority is cited by the appellants for the proposition that, as defendant had paid a previous bill for repairs, she could not counter-claim damages for unskillful or negligent work in making such repairs, nor for the proposition that the payment of such bill by these defendants, and the recovery of a judgment for a subsequent bill by plaintiffs, is •conclusive as to all matters connected with the first bill, the same as if plaintiffs had recovered a judgment therefor; and there seems to be no foundation for either proposition. The judgment should be affirmed.