Wingate v. McNamar
28 Ind. 481
Ind.
1867
Check Treatment
Frazer, C. J.

— The instruction to the jury, which the appellant argues was erroneous, does not appear in the record in any manner known to the law. It is not embodied in a bill of exceptions, nor does it appear as the statute provides it may. 2 G. & H., §§ 324, 325, p. 198; Newby v. Warren, 24 Ind. 161. We cannot, therefore, consider this question thus sought to be presented. We cannot forbear remarking that a transcript so badly made up as this is, it is to be hoped will not again be filed in this court.

The suit was for the breach of a contract to carry, tri*482weekly, the United States mail upon a certain route. Win-gate had a contract therefor with the government, and employed McNamar and -one Christman, who had assigned his interest to McNamar, to carry it for him for $175 per annum until July 1st, 1866. The contract was in writing, and stipulated among other things, that “ if said Wingate shall be removed as contractor, or otherwise become unavoidably incapacitated to hold said contract, previous to the expiration of these articles, then he shall be fully discharged from the further performance of the same; and said Christman and McNamar further agree that if the service on said route be increased or decreased by the United States during the continuance of these articles, they will be governed in all respects by the same, and receive for their services a sum in proportion to the amount, and in the manner heretofore specified.”

This contract commenced on the 3d of Aitgust, 1863. In October, 1864, the postmaster refused to deliver the mail to Christman and McNamar, under orders from one Payton, who thereafter carried it daily, under a contract with the government. The service had been increased by the postmaster general to a daily one, and thereupon the defendant had surrendered his contract, the postmaster general notifying him that he must perform the daily service for $300 per annum, or surrender. Payton then took the contract at $300, and the mails were no longer delivei’ed to Christman and McNamar.

It is contended that these facts show the case provided for by the contract when Wingate should be discharged. It seems to us, that the contract between the parties did not require Wingate to enter into any new contract with the government, so that he could enable Christman and McNamar to perform for him the increased service which the government subsequently thought proper to establish. They bound themselves to perform such increased service at a proportional rate of compensation, but they left him at liberty to «take or not to take a contract with the government for such *483increased service, as he might elect. TJpon that subject he was not bound. He declined the increased service for $300 per annum, being $50 less than he would have been compelled to pay them. This, we think, he was at liberty to do under the contract. He was consequently removed as contractor, and upon that event it was expressly agreed that he should be discharged from the further performance of his agreement with Christman and Me A!amar. This being our construction of the contract, it is plain that we must reverse the judgment for error in refusing a new trial, upon the ground that the verdict was against the evidence.

D. E. Williamson and A. Daggy, for appellant. J. L. Ketcham and J. L. Mitchell, for appellee.

The judgment is reversed, with costs, and the cause remanded for a new trial.