This case has been in this court once before, on a demurrer to the complaint, at which time the character and sufficiency of the cause of action therein stated, and the issues tendered, were fully considered and determined. 17 Minn. 433. It was then held that the action was not brought upon the contract between the parties, either as originally made or subsequently modified, but was in the nature of an action upon a quantum meruit and quantum valebant, in which the plaintiff sought to recover the reasonable value of the labor performed and materials furnished by him, and that the contract was referred to for the purpose of determining such reasonable value, and of stating in full the origin of plaintiff’s cause of action.
Under the issues raised by the pleadings, the modification of the original contract as alleged in the complaint, the directions and orders given by defendants to plaintiff as to the work to be done and the manner of doing it, its character and sufficiency, having reference to the peculiar condition and nature of the site whereon the building was to be erected, and whether its construction in accordance with such directions and orders caused its fall and prevented its completion, were all proper and material subjects of enquiry. Any testimony bearing directly upon either of these points was clearly pertinent, competent and admissible, without being pleaded. In fact, pleading mere evidence of traversable facts put in issue would be objectionable. Hence, the
So the pleadings in the suit of Stees and another against the same defendants, verified as they were by two of the defendants, were properly received in evidence, as their admissions of the truth of such statements therein contained as related to material and controverted facts in this suit.
As to the point made by defendants upon the alleged insufficiency of the evidence to support the verdict, it is sufficient to say that there is not such a want of testimony on the part of plaintiff upon any material issue as would warrant this court in disturbing the verdict.
We have carefully examined the charge given by the district court to the jury, and find it to contain a very fair and clear presentation of the issues involved, and the law applicable to them, and we do not find that any of the rulings, upon the specific requests of either party, essentially modified the general charge in any respect, or was likely in any manner to confuse or mislead the jury in respect to their duties, as indicated by the general instructions. The court instructed the jury, among other things, in substance, that if they should find from the evidence that any of the defendants had wilfully sworn falsely upon any material fact, it would be their duty “to wholly disregard the evidence of such defendants upon all points when they were not corroborated by testimony.” Defendants object to this, not on the ground that it is an incorrect statement of the rule of law, but because it assumes, as a fact, “that there are points where they are not corroborated by the testimony.” When an instruction given is susceptible of either of two meanings, one of which will support, and the other invalidate, it, the former must be regarded as the sense in which it was given and understood, especially if the attention of the court was not particularly called to the alleged
The sixth request of defendants rested partly upon the assumption that the evidence established, as a fact, that there had never been any modification of the original written agreement, the very point in issue before the jury, and which the court very properly declined to decide. As to the other points made by defendants’ counsel in his printed brief, they are not deemed to be well taken. The order refusing to set aside the verdict, and denying a new trial, is affirmed
Q-ilfillan, O. J., having been of counsel, did not sit in this case.