(concurring specially). The plaintiff’s witness Gannon testified that the well was constructed under an oral contract entered into between himself, as president, acting for the plaintiff bank, and the defendant. The general denial in the answer raised an issue, not only as to the existence' of the oral contract testified to by the witness, but also as to whether the well was constructed under the oral contract. The witness also testified that the oral -contract was made with the bank; he acting as its president.' The general denial raised an issue whether the witness was acting in behalf of the bank or otherwise. It seems clear tome that upon eách of these issues the written contract is relevant and material as a part of the cross-examination of Gannon, and fhat the court committed no error iri receiving it in evidence. If it had been conceded that the well was -constructed' under the oral *127contract with the bank, or that it was constructed under the written contract with Gannon as an individual, there would have been no issue for the jury. But, neither of these -propositions being conceded, the question as to what the fact was should have been submitted to the jury. When the court, by directing a verdict, took these issues from the jury, it committeed an error for which there should be a reversal. The question whether the alleged oral contract was later merged into a written contract goes to the very existence of the contract sued upon, and requires' no pleading beyond the general denial in the answer. I concur in the conclusion reached by the majority of the court.
WHITING, J., concurs in the views expressed by SMITH, J.