The first question presented by this record, is whether the execution of the subsequent agreement under seal, converted the original, unsealed instrument, into a deed, and rendered it inadmissible in evidence. This subsequent memorandum although indorsed upon the paper containing the agreement of the parties, for the construction of the houses, and notwithstanding it referred to the former agreement, and the erection of the buildings, formed no part of the first agreement. It made no change in the terms, conditions or specifications contained in that agreement. It only imposed, or fixed a penalty, in case the original contract was not performed by appellees, and the building should be injured by the winter. But even if this were not so, there was no objection interposed to its being read as evidence to the jury, and the objection cannot be urged here, for the first time.
It is also urged that EL B. Weeks was shown by the evidence to have had an interest in the event of the suit, and was for that reason incompetent as a witness. Boyington, a witness, who was called to establish his interest, testified that H. B. Weeks had said to him, that the reason why he had changed the mode of executing contracts was on account of some unsettled matters in New York, -and that the work would be as satisfactorily performed, as he would superintend it, as though executed in his own name. That sometimes the young men received the certificates, and sometimes H. B. Weeks, and that whenever he wanted anything done, he usually consulted with the old gentleman. This evidence leaves it in doubt whether the witness, H. B. Weeks, was acting for himself in the name of his sons, or as their agent. But it is not inconsistent with an agency, and the interest of a witness to disqualify him from testifying, should be established by a preponderance of evidence, and that evidence should be legitimate. It has been held, and it is believed to be the rule, that the declarations of the proposed witness cannot be received to disqualify him from testifying. They are held to be no more than hear-say evidence, and therefore inadmissible to prove a disqualifying interest. Jones et al. v. Gully, 4 Litt. R. 25 ; Price v. Chase, 8 Mass. 487; Commonwealth v. Wait, 5 Mass. 261. The party may resort to the voir dire, or he may establish the disqualifying interest by other testimony, but it must be legal. If the declarations made by a witness out of court and not under the sanction of an oath were'to be admitted to disqualify him, it would afford an easy and ready mode for an unwilling witness to avoid examination. He would only have to state out of court, in the presence of the friends of the party against whom he is called to testify, that he has an interest in the event of the suit, and they testify to his statements, and he would escape examination.
It was also objected that appellees were, rinder the contract, precluded from showing the amount and value of extra work. And that the superintendent should have determined these questions. Even if the proper construction of the contract authorized Boyington to determine the amount and value of the extra work, he did not make the estimate. The contract only authorized him to make additions to or deductions from the contract price, growing out of a change of plan and the damages thereby sustained. The architects testified that there might be extra work and extra material, without any change of the plan or design of the work. And if it required evidence to prove that fact, it was thus proved. And this evidence stands uncontradicted, and if it be true that this extra work was not occasioned by a change of plan or design, then the superintendent had no right to determine by his certificate its amount and value, and this must have been so regarded by the superintendent, for he does not attempt to fix it, when he estimated the damages sustained by appellant growing out of delay in the completion of the buildings. The appellees only proved the amount and value of the extra labor and materials furnished under the direction of the superintendent, and in this there was no error.
Prom the verdict in the case, it appears that the jury allowed appellant for all the payments he had made on the contract, arid rent for the buildings for the period he was delayed in getting them, after the expiration of the time, when they should have been completed, by the terms of the contract. And we are not able to perceive that the jury allowed appellees anything more than the balance of the contract price, and for the extra labor and materials furnished, at the prices proved, and interest for delay in payment, which was remitted. After remitting the interest the evidence warranted the finding of the jury.
The judgment of the court below is affirmed.
Judgment affirmed.