SWAIN et al. v. NAGLEE et al.

SWAIN et al. v. NAGLEE et al. Discretion of the Court below in granting new trial reluctantly interfered with. In suit for “work, labor, and services " in putting up gas fixtures in American theater, and for “ goods, wares, merchandise, and gas fixtures sold and delivered ”—the complaint setting out the items—it is competent to ask a witness skilled in the business, and who has made an estimate, “ How much time would it take to do that job 1 ” Appeal from the Fourth District. The complaint contained two counts : one for three hundred and seventy-five dollars for work, labor, and services done and performed, between certain dates, in putting up gas fixtures in the American theater; the other for goods, wares, merchandise, and gas fixtures sold and delivered between the same dates. Annexed to and as part of the complaint was a full bill of items of the work, etc., and the goods, etc. The answer traversed fully both counts, and then set up that plaintiffs were instructed specially not to put in any new gas pipe or fixtures, but to use the old pipe already in the building; that as to certain other portions of the work, it was not done as alleged; and further, that the work and labor done amounted only to forty-six and a half days’ work, and was not worth more than one hundred and eighty-six dollars. The case was sent to a Referee, and on the trial before him, plaintiffs introduced as a witness one Ross, who having testified that he was a gas fitter, and had made an estimate of what this job would be worth, based upon the time it would take, was asked this question by plaintiffs: “ How much time would it take to do that job ? ” Objected to by defendants, on the ground that the complaint is for particular items of work and labor and goods. Objection sustained, on the ground that the question is not limited to the cause of action set forth in the complaint. Plaintiffs except. As this is the only point passed on by this Court, further facts are not given. The Referee gave judgment for plaintiff for a portion of the amount claimed. New trial granted by the Court. Plaintiffs appeal. W. W. Stow, for Appellants. D. P. & A. Barstow, for Respondents. [MAJORITY — Baldwin, J. delivered the opinion of the Court] Baldwin, J. delivered the opinion of the Court Field, C. J. concurring. We interfere with great reluctance with the discretion of a Court in granting a new trial. From the examination which we have made of the case, we think the Court did not err in ordering the new trial in this case. It is not necessary, in the press of business, to give a detailed opinion, as upon the retrial most of the points made will probably not arise. We think the Referee erred in refusing to permit the witness Ross to testify as to the number of days it would require to do the work in the American theater. It is not necessary to pass upon the complaint and the question of the admissibility of evidence under it, as upon another trial this question may be avoided by proper amendments. Judgment affirmed.