The real controversy upon the trial below was whether the written contract between the county and the appellee became so far rescinded by the action of the board in adopting the new plans that it ceased to be binding upon the appellee, and furnished no rule for determining the compensation that should be paid to him for constructing the foundations according to the new plans. This issue was distinctly made upon trial, sharply contested, and upon which the evidence, as it appears in the record, was quite conflicting; and as we must reverse the judgment because of an erroneous instruction given to the jury, we shall express no opinion as to the weight of the evidence in the case.
The appellee asked, and the court gave to the jury the following instruction, being the first one of the three given on his behalf.
“ If the jury believe from the evidence that the plaintiff furnished materials to, and performed work for the defendant, and defendant took possession .of, appropriated, and used the same without any protest or objection of any kind, the defendant became liable to pay the plaintiff the fair market value of his work and material as shown by the evidence.” By this instruction the jury was relieved of the necessity of determining under the evidence the most vital issue in the case whether, under the evidence, the contract furnished the rule of compensation or not. It was not denied that Harms did the work, furnished the materials and completed the foundation, nor that the county took possession of and appropriated the same to its own use, without objection. This being really admitted, all the jury had to do under this instruction was to find the fair market, value of the work and material.
It was insisted by the defendant below, that the changes in the plans came within the provision of the contract relating to changes, alterations and additions, and that after the adoption of the new plan, the contract was still considered by the parties as in force, and that Harms performed the labor under it, and evidence tending to sustain such claim of the defendant was introduced upon the trial. If such be the fact it can hardly be contended that Harms can recover as upon a quantum meruit. ' The jury should therefore have been required, under proper instructions, to pass upon such question, as it was really the only materially contested one in the case. If the 'jury saw proper to accept this instruction and act upon it as the law of the case, and they would be very apt to do so, as i t relieved them of passing upon a conflict in the testimony, the appellant was deprived of the right of having such issue determined by the verdict.
As we cannot see from the record but that the verdict was the result of this inUructi'on, it is no sufficient answer to the error that some of the instructions given for the appellant may have stated the law correctly. Baldwin v. Killiam, 63 Ill. 550; I. C. R. R. Co. v. Moffit, 67 Ill. 431.
It is also urged by the appellant that the appellee should have been required to produce upon trial the contract between him and the county.
The appellee was a witness in his own behalf 'upon the trial below, and testified that his job was not done under a special contract, and perhaps under this statement of the witness made upon direct examination, the court could not act upon the statement of counsel for appellant, that the work was performed under a written contract; but as soon as it was shown by the cross-examination of the witness, that he commenced work upon the building under a written contract, and that his statement in the direct examination was based upon his conclusion that the contract had been rescinded by the action of the board in so changing the plans as claimed by him, as to destroy the identity of the subject-matter of the contract, we think the court should have compelled him to produce the contract, the better to enable the court and jury to determine whether his claim was well founded. In the absence of such contract and plans in evidence, the witness should not have been permitted to state what work was within its terms, and what was not included in it. To allow him to do so, under the circumstances of this case, was in effect to permit him to determine one of the material questions in the cause by his own construction of the contract, and the action of the county authorities.
This error was, perhaps, in great measure obviated, as the record shows that the contract, plans and specifications were introduced in evidence by the appellant, thereby giving to the jury the means of properly weighing the testimony in its hearing upon the claim made by the appellee. The court also permitted the appellee to introduce in evidence upon the question of the value of materials furnished, certain price lists of dealers in such articles. This we think was improper; but as there was other sufficient evidence upon that point, it probably did no harm to the appellant, and we should not perhaps consider such action of the court sufficient to reverse the judgment, if the record was otherwise free from error. As the judgment must be reversed for the error of the court in giving to the jury the first of the appellee’s instructions, it becomes unnecessary to notice the objection that the judgment was entered by order of the judge signed in vacation. The judgment will be reversed and the cause remanded.
Judgment reversed.