4 Kan. 187 | Kan. | 1867
By the Court,
There are several assignments of error in this case, which have been presented and insisted upon by counsel with much earnestness, as furnishing, and each in itself, ample grounds for the reversal of the judgment herein, as entered by the district court. But it will not be necessary to consider all of the errors complained of, inasmuch as the views we entertain, respecting a small portion of them, practically determine the disposition of the case, as far as we are concerned. But even if we were disposed to discuss all the points which have been raised by the argument, we should, perhaps, be unable to do so with satisfaction to ourselves, owing to the condition of that part of the record — ■ confused and meager — in which those portions of the proceedings below upon which some of such points rest, are stated in the exceptions, or rather in the “ case made.”
The first alleged ground of error, which we propose to examine, is that in relation to the admission of secondary evidence to the jury for ihe purpose of showing the contents of the written contract or instrument, upon which the action was founded. The record shows
The defendant below insisted that a sufficient foundation had not been laid to authorize such secondary evidence to go to the jury. But the court overruled Ms objection, and allowed the evidence. We think that this ruling of the court was clearly erroneous. In our view, there was nothing in the evidence even tending to show that the original contract was lost, or that it was beyond the reach of the plaintiff. And, indeed,
It is a well settled principle of law, governing the introduction of testimony, that secondary evidence of the contents of written instruments, is not admissible when the originals are within the control or custody of the party, or when they are witMn Ms reach, and may
In this case we think it is clear that the plaintiff did not make such effort as he ought to have made to procure the original contract, to entitle him to offer secondary evidence of its contents to the jury.
But while we think that secondary evidence of the contents of the written contract should not have been allowed to go to the jury at all, under the testimony of the plaintiff and his attorneys, our conviction is doubly strong that after the evidence of Mr. Chadwick had been introduced, all such secondary evidence should have been ruled out, and the jury instructed not to take it into account in making up their verdict. The court refused so to do, and thereby committed another error, calculated to prejudice the rights of the defendant.-
As a further ground of error, it is alleged that the court erred in instructing the jury that they must allow and compute the interest on the plaintiff’s claim, at the rate of ten per cent, per annum, from the 2d day of October, 1857. This was clearly wrong, inasmuch as the laws regulating interest, in force at the time, when it is alleged the money became due to the plaintiff, to wit, on the 2d day of October, 1857, and at the time when the judgment was rendered, to wit, on the 6th day of October, 1865, did not permit of such a rate of interest upon such claims.
But we really cannot see how such a claim could be brought in under the contract. The plaintiff agreed to work on the ferry for the sum of one hundred dollars per month, and the whole record, taken together, shows that he did so work for the term of six months, and perhaps two or three days.
The contract is silent as to any extra pay for services on the Sabbath, or otherwise : and if he chose to perform such service, he will be held to have performed it under the contract. We think, from all the circum-' stances developed in the record, that any claim for extra service was simply without foundation.
It is further claimed that the court erred in failing to charge the jury in regard to the question of settlement between the parties, as to which there was testimony introduced by both plaintiff and defendant. It is no doubt the duty of courts to charge juries upon all the issues of law involved in cases which may be submitted to them, but it frequently happens that a failure so .to do does not work any serious injury to either party, and if substantial justice has been done, a revising court will not reverse a judgment for such failure alone. In this case it no doubt would have been proper for the court to have charged the jury further than it did, and upon some points which he did not touch upon, as it appears by the record. But inasmuch as such instructions as were asked do not seem to have been put
The judgment of the district court is reversed, and cause remanded, with instructions to sustain the motion for a new trial.