47 Iowa 300 | Iowa | 1877
There had been a previous trial of the cause in the court below, in which trial one Isaac Herrill was a witness for the defendant. The witness not being present at the last trial' counsel for defendant offered in evidence'a transcript of his testimony on the former trial, taken and filed by the shorthand reporter, the offer being made-upon the alleged ground that the witness was without the jurisdiction of the court, having removed to the State of Missouri. Objection having been made the, defendant introduced a bailiff of the court, who stated under oath that he received a subpoena for the witness on the 11th day of October, 1878 (which was the same
One of defendant’s counsel testified that at the time the subpoena was issued he supposed the witness was a resident of Burlington, and that he did not discover his absence until the return of the subpoena.
The court found that the evidence was material, as tending to support the issue upon the part of the defendant, but rejected the testimony because no sufficient ground had been laid for its introduction. This ruling of the court is assigned for error.
Whether the transci’ipt of the testimony of a witness made by a short-hand reporter can, under any state of facts, be admissible upon a subsequent trial, we need not now determine. The question does not really arise in the case. We are agreed, however, that the mere fact of the absence of the witness is not sufficient to allow the transcript of his testimony to be introduced. The rule, that the testimony of a deceased witness upon a former trial is admissible, is one of necessity. The witness cannot be produced or his evidence taken upon commission. This rule has no application where the only showing made is that the witness, although living, is beyond the reach of a subpoena. In such cases we think a showing of diligence to procure the attendance or deposition of the witness should be required. The subpoena for this witness was not placed in the hands of the officer for service until the day upon which the trial was commenced, and the defendant was not aware of the removal of the witness until the next day. We concur with the court below that this was not a sufficient showing of diligence.
It does not appear when the witness removed. It may have been if a subpoena had been placed in the hands of an officer for service within a reasonable time before the trial the attendance of the witness would have been secured. This Avould at least have developed the fact of his removal, and steps could have been taken to have his testimony in the form of a deposition, or, if there should not have been sufficient time for -that
We think there was no error in this ruling. It is urged by counsel for appellant that the plaintiffs were bound by the .written contract to bring the street to the established grade provided by ordinance, whatever rock or hard material there may have been to remove, and that any statement or representation of the engineer would not affect or vary the written contract. The ordinance establishing the grade was not introduced in evidence. Whether an examination of it by plaintiffs would have indicated to them the depth of the excavation we have no means of determining. It is more than likely that such examination would impart no accurate information in that respect, unless aided by the services of an engineer. The plaintiffs introduced in evidence certain city ordinances providing in substance that it was the duty of the city engineer to superintend the grading, curbing, etc., and all other works of a public nature relative to streets and bridges within the city; that he should make all surveys of the streets of the •
“ The contract for grading High Street was in writing and is before you, and you are to be governed by its terms and provisions so far as the work was done under it, and the price to be paid therefor. The material question raised in relation to said contract is how deep was the cut or excavation to be made in said street under said contract. In the absence of evidence on the subject you will find the grade to be just where it was in fact established by the city, no matter how deep the cut should be or how much of a fill there should be, and such grade should be determined by the ordinance of the city, the rule of law being that in written contracts parol evidence shall not be allowed to change the terms or meaning, or to contradict, enlarge or diminish its terms by showing what was said ■or intended at the time of making the same.
“2. But this rule has some exceptions or qualifications. One is that where parties have contracted with reference to a certain state of facts within the knowdedge of one party, upon which the other entirely relied, and the one having the knowledge stated such facts to be true, and you find the same mate
“3. And in this case if you find that the plaintiffs,-when bidding for the work on High Street, and before or when contracting for the same, applied to the internal improvement committee and the city engineer, who were in charge of the work, to know where the grade line of High Street was, and the committee directed the engineer to show and give the same, and if it was his duty to do so and he did so and fixed the stakes upon the ground to show the same, at or about the time the contract was made, and you find the contract was made with direct reference to the line of grade so given, and the defendant and said committee and engineer so knew and understood the plaintiffs were relying upon and contracting in reference to the grade so given, then for the purposes of this case you will consider and construe tins contract as fixing such line as the true grade.
“ 4. And if you find there was work and labor done below said grade line, so represented and staked by the engineer, and such was done with the knowledge of the city and the officers in charge, and such was beneficial to the city, then the plaintiffs will be entitled tó such compensation for the same as like work under the contract, if any, and if not, then what the same was reasonably worth under the evidence before you.”
It was undoubtedly the plaintiffs’ right to rely upon the representations made by the engineer as to the depth of .the excavation, and if upon completion of the work to the depth indicated by the stakes which were standing at the time the contract was made they had abandoned the further prosecution of the work, they would not have been liable in damages for a failure to comply with the written contract.
This would be true, conceding that the engineer was innocently mistaken in the representation as to the depth of the excavation to be made.
It is equally true that if the plaintiffs, after the original stakes were taken up and replaced, and they were directed to excavate to the depth indicated by the stakes last set, proceeded with the work without objection, they would be concluded from making any claim in excess of seventeen cents-per cubic yard, that being the contract price.
But the evidence shows that the plaintiffs presented a petition to the city council setting forth the development of obstructions in excavating High Street, that were not and could not have been known at the time the contract was entered into, and that the obstructions were of such a nature as to cause the plaintiffs to be greatly losers; and praying the council to take such action and make such examination of the facts as justice and equity required. No action was taken by the council upon this petition. Two witnesses, who were members of the city council, testified that the plaintiffs did not complete the excavation to the established grade; that the city made no new contract with the plaintiffs, but released them from completing the work, because it was a losing job for the plaintiffs.
This being the evidence before the jury we do not think the instructions of the court were erroneous.
1’f the plaintiffs, because of the mistake of the engineer, had the right to stop the work at the depth indicated by the stakes .■ as first set, and recover the contract price of seventeen cents .per cubic yard for the work done; and were under no legal obligation to'proceed further; and they notified the council by their petition of the development-of the obstructions, and requested that some action be taken in the premises, we do not think they should be held as proceeding with the work under the contract; but that the removal of the hard material in
There is nothing in the instructions of the court, or in the refusal to give the instructions asked by defendant, inconsistent with the rule here announced.
Aeeirmed.
