The opinion of the court, Porter, J. absent, was delivered by
Mathews, J.This is an action on a quantum meruit, instituted by a carpenter to recover the value of certain labor done on a house of the defendant, at the instance and request of the latter. The value of the work, as estimated by the undertaker, amounts to six hundred and forty dollars and seventy-six cents; and thjs is established by the testimony of the cause, to be its value, according to. the customary charges, by workmen.
The testimony aucfcTto”writing ona f°rmer trial, cannot be read in evidence, on a £l*s.cqnent tiial “oufofThcjmis-*l” 0°f forcible Tauso exists.The defendant pleaded the existence of a special contract, by which the undertaker agreed to do the work (for which he claims upwards of six hundred dollars,) for two hundred. He pleads, also, payment made on this amount, so as to reduce the balance owing on the contract, to forty-nine dollars.
The cause was submitted to a jury in the court below, who found a general verdict for the defendant, and judgment being thereon rendered, the plaintiff appealed.
It appears by the record, that the judgment from which the present appeal is taken, was rendered on a second trial. On the first trial, a synopsis of the testimony was made to serve as a statement of facts, in the event of an appeal; but in consequence of a new trial having been granted, no appeal was'taken. The testimony thus abridged, was acknowledged to be correct, and signed by the counsel of the parties, who acted on the first trial. It was offered in evidence, by the plaintiff, at the second, and admitted, under a bill of exceptions taken by the defendant.
This evidence was excepted to, on the ground that the witnesses, or some of them, whose testimony it purports to contain, as taken down in writing on the first trial of the cause, were present in court, at the time of the second trial.
We think the judge a quo erred in admitting this evidence. It was not the best in the power of the plaintiff to produce. A re-examination of the witnesses before the jury would have been better. And as they seem to have been within the jurisdiction and control of the court, their testimony taken on the former trial, ought not to have been received, according to the rule of evidence, which requires the best i i -i » i i n i i to be adduced which the nature of the case admits.
The only principle on which these depositions could be legally admitted, would arise out of the impossibility to reexamine the witnesses in open court, on account of their absence from its iurisdiction, or some other cause of equal „ force.
«remanded,Tffta bercóntrarítoUm cord. Burk an,d Davis, for appellant. JYicholls, for appellee.As to the merits of the case, it is clear that the verdict of the jury is contrary to the admissions of the defendant, and , , , , ,, . , probably to the evidence.
The answer admits forty-nine dollars to be due to the plaintiff, even on the specific contract, as alleged; and there is no evidence of this sum having been legally tendered to him. And, moreover, we are inclined to believe that no such
contract was ever made between the parties. But as this is a matter of fact, and most properly cognizable by a jury, the cause must be remanded.
It is therefore ordered, adjudged, and decreed, that the judgment of the District Court be avoided, reversed and and annulled, and the verdict of the jury set aside. And it is further ordered, that the cause be sent back to the court below, to be tried de novo. The appellee and defendant to pay the costs of this appeal, &c.