Donahue v. Connor

Mr. Justice Paxson

delivered the opinion of the court, May 3d 1880.

1. The first assignment of error is not sustained. If the allegation of the plaintiff was correct, that he was not confined to the contract price, but was entitled by a subsequent agreement of the parties to recover the actual cost of the work, the offer to prove the entire amount of the expenditure from the beginning was clearly admissible.

2. The pay-roll was not competent as a book of original entries. It did not charge the defendants with anything, and was res inter alios aeta. Some of the entries were not made by the plaintiff. But he testified that it showed the amount paid for labor, including the store accounts. This was sufficient to entitle it to go to the jury, not as original evidence of the charge, but as corroboration of plaintiff’s testimony and his statement of the amount expended.

3. It was error to exclude the question referred to in this assignment. The defendants claimed that there was-only about $1000 due the plaintiff at the completion of the contract, which had been paid to his assignee before suit brought. The plaintiff denied the settlement, and claimed a larger sum. It was certainly competent for the defendants to show that on a prior judicial proceeding the plaintiff had claimed but $1000, and had called witnesses to prove it.

4. We are not prepared to say the court below erred in allowing the question referred to in this assignment to be asked upon the cross-examination of the witness Rupp, unless, however, what Connor said, was communicated to Donahue & Shields at an interview to which the witness had referred in his examination-in-chief, it ought to have been excluded. ' It was not competent for the plaintiff, under the guise of a cross-examination, to get in his own declarations at an interview as to which the defendants had offered no evidence. The record as presented is not clear upon this point. The bill of exceptions does not mark the particular interview to which it refers with any certainty. As the case must go back we make this reference to prevent misapprehension hereafter. Just here we desire to say, that it would greatly abridge our labors in many cases, if assignments of error, to the exclusion or admission of evidence, would set forth the name of the witness. Where the testimony is voluminous it is no small labor sometimes to find the proper reference in the bill of exceptions.

5. The defendant’s sixth point should have been affirmed. If, as alleged, the plaintiff executed a voluntary assignment prior to the commencement of this suit, and the assignees in good faith settled with the defendants for the balance due the plaintiff, the defendants would be discharged from further liability in the absence of fraud, accident or mistake. There was no evidence of either to submit to the jury. Whether there was a settlement in point of fact will be for the jury upon another trial.

Judgment reversed, and a venire facias de novo awarded.