Hogan v. Gibson
12 La. 457
La.
1838
Check Treatment
Bullard, J.,

delivered the opinion of the court.

The plaintiff sues to recover the value of work done, and materials furnished by his assignor in constructing a gin for the defendant.

The defence was, that the work was done in pursuance of a verbal contract, and that the stipulated price has been paid. He further alleges, that he sustained great loss by the delay of Evans, the assignor, to complete the gin at. the time stipulated ; which, together with three hundred dollars for boarding and lodging, he claims in compensation.

There was a verdict for-defendant, and judgment having been pronounced accordingly, the plaintiff appealed.

The case comes before this court upon several bills, of exception. From one of them it appears, that on the trial *460the defendant offered to prove a verbal contract, and it appearing from the testimony of one of the witnesses, that a contract bad been reduced to writing, the plaintiff’s counsel objected to any parole evidence of the contract, on the gro.und that the written contract was the best evidence, and must be produced, or accounted for, and if the said writing was unsigned, and they contemplated a written contract, no evidence could be admitted of it until it was signed. But the court disregarding the objection, proceeded to inquire whether there was a written contract, and having been satisfied there was not, admitted evidence of a verbal one, as averred by the defendant in bis answer. It appears to us the court did not err. It was not material whether the contract was by parole or in writing, as relates to the plaintiff, because if a contract really bad been entered into between the parties, the plaintiff who sued upon a quantum, meruit, could not recover; and the only motive for inquiring into the form of the contract, was to ascertain whether parole evidence was admissible. The law does not require that such a contract shall be reduced to writing and signed.

In an action on a quantum me-ruity .the defendant may show that there was a «verbal or written contract between the parties; and if a contract really .exists, the plaintiff who sues on ¡a quantum me-:ruit, cannot recover. Parole evidence is admissible, first, to •show the form of a contract between plaintiff ¡and defendant, whether it be •written or ver-dais and if the latter, to make proof of it. Kvidence of a \verbal contract will not be admitted, until the .court is satisfied there is no written one ; and when the court permits evidence •of a verbal contract to go to the jury, it is proofto them that there is no written one. The jury is to be guided by the evidence allowed to go before them by the •court, and they cannot - pronounce on evidence not before them, nor inquire into the correctness of the judge in rejecting or admitting particular evidence.

*460The charge of the judge to the jury was also excepted to. They were told that the question for their examination was, whether the defendant had shown a verbal contract as stated in his defence ; that the court having permitted the defendant to give evidence of a verbal contract, was proof to them that .there was no written one; that the court could not admit evidence of a verbal contract, until satisfied there was not one in writing, and having admitted such evidence the province of the jury was confined to the testimony, in reference to a verbal contract. The court further stated, that under the pleadings, if the jury was satisfied there was a contract, as stated in the answer, they were bound to find a verdict for the defendant, and that the plaintiff could not recover for extra work in the present form of action.

' We concur with the judge in this charge. Nothing is better settled than that the jury is to be guided by the evidence before them ; and it is exclusively the province of the court, to admit or exclude evidence, and the jury cannot pro*461nounce upon evidence not before them, nor inquire into the correctness of the judge, in rejecting or .admitting particular 'evidence.

On -a quantum .meruit^Q plaintiff cannot recover for extra work, alleged to rhavebeendone.

It is, therefore, -ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.