Willey v. Hall

Stockton, J. •’When a question as to the admissibility oí a witness, is intended to be raised by bill of exceptions, for the determination of this court, it should appear, not only that the objection to the admissibility of the witness was overruled by the court, but that the witness was sworn and gave evidence material to the issue. In this instance, the bill of exceptions does not show that Williams was sworn as a witness; that he gave any testimony; or that his testimony, if any was given, was in anywise material. It is not even shown what objection was made to the competency of Williams as a witness, and, under the circumstances, we cannot say that there was any error in overruling the objection. We think that one, at least, of the questions at issue between the parties, was, whether by their parol contract, subsequent to the written one, they abandoned the latter, and agreed to a change of the size of the building, and the time of its completion, adopting the provisions of the ■ written agreement, so far as applicable, to the new one, as to the terms and time of payment. Under this state of the pleadings, we thing the evidence offered by the defendant, to prove such subsequentparol agreement, should have been received by the court; and for the error in rejecting the same, the judgment, will be reversed. Judgment reversed.