Graham v. Trimmer

— 236 — The opinion of the court was delivered by Sarrord, J.: i. jtoobs. ?esiSe.‘on8 It is claimed that the court below erred in permitting one Goslin to be sworn as a juror, on the [trial of this case, and over the objection of the then defendant, now plaintiff in error. The ground of the objection to said Goslin was that he was not possessed of the qualifications of a juror, by reason of his having become a resident of this State only a month or two before being called as such juror. We are of the opinion that the objection was well taken, and should have been sustained. It appears from the bill of exceptions that the juror had formerly resided in the county of Atchison, but about fourteen months previous to the trial of this case, he had removed to the State of Pennsylvania with the intention of there residing and doing business at least two years. It also appears that immediately upon his arrival in said State of Pennsylvania he commenced housekeeping with his family, and thus continued for more than one year. He also entered upon a regular business in said State, and followed it until about the time of his return to this State, which occurred some two months previous to the date of this trial. Under such a state of facts we do not see how Goslin could be regarded otherwise than as having been a resident of the State of Pennsylvania during all the time he was there; and if such was the case, he could not at the same time have been a resident of the State of Kansas. It is absurd to say that a man can be a resident of two States, or two places, at one and the same time. But it is said, and much stress is laid upon the fact, that this party when he left Kansas intended to return, and that he never abandoned the intention of so returning. — 237 — This may be true; but still it does not do away with, nor affect the fact, that after he left Kansas he became a resident of Pennsylvania, and so remained for more than a year. That fact still remains, and it follows that, as far as his present residence in Kansas is concerned, it cannot be deemed to have commenced at any other time than upon his return, as before stated. The conclusion is therefore inevitable, that at the time he was sworn as a juror in the case below, he was not competent to sit as such. This point is conclusive of the case here, and it must go back for a new trial. 2. evidence: Proof of custom allowed, to aetermine measuremeDt. II. But other points are made which it seems necessary for us to mention. . Upon the trial evidence was sought to be introduced, touching the proper -i , i a • , . and customary method ot measuring: certain ° ° kinds of work, about which the dispute existed. This was objected to, but to some extent was allowed by the court .and as we think correctly. JSuch inquiry in such a case — that is, when the matter is open, for all that appears to the contrary — is to our minds clearly competent, and if confined within reasonable limits, is caleutated to assist the jury in arriving at a just determination as to the merits of the matter in dispute. The record does not show that anything was done in this behalf beyond that which we think the law allows. It is however, to be remarked that evidence of the nature of that referred to, will not have the effect of changing or affecting an express contract of the parties, in regard to the subject-matter to which it was directed. _Evidence must abe prejua^eiioneous1 “ara The attention of the court has been called to other instances, where questions were permitted to be put to witnesses, on the trial below, and over the . _ - n objection of the plaintiff in error. Some of them are perhaps objectionable, but so far as — 238 — we are able to judge, they were not of-such a character as to materially and prejudicially affect the rights of the objecting party, nor did they elicit replies which would seem to have had such an effect. Such being the case, no reversal should be had on the ground of such questions alone. 3. pmadikgs. dence^obVcon. joined. III. It is further urged by the plaintiff in error that the court below erred in not permitting him to show, that he had expended a large amount of money in repairing the plastering, which was the subject of the suit. It seems to us that the ruling of the court was correct, and for the reason that evidence of the character referred to was not admissible under the pleadings. Evidence should be confined to the issues formed by the pleadings; and as there was no issue to which the evidence proposed could be directed, it was not error to refuse to permit it to go to the jury-. i_Andorrano denceappiicoble to such isBue' IV. Another question in regard to the admission of testimony, or rather, the refusal to admit, will be con-0idered in connection with the instructions which were given to the -jury. It is con-0 o j tended that the court erred in charging the jury, “ That if they found for the plaintiff, then the plaintiff was entitled to recover for the full number of yards claimed in the plaintiff’s petition, there being no issue in the pleadings, as to the number of yards of work, at the price agreed upon, with interest,” etc. The pleadings are somewhat unsatisfactory, and perhaps defective, and liable to objection in several respects; but regarding them liberally, and as the parties- themselves seem to have done,- we think there was an issue formed between the parties as to the amount in yards of plastering, which — 239 — was the subject of the controversy. The petition with the exhibits show one estimate of the work done in yards, while the answer admitted a less number and denied that there were more than such less number. "We so understand the pleadings; and if we are right, it clearly follows that the instruction of the court referred to was wrong. And it also follows that the court erred in excluding the testimony of the defendant below which tended to show generally that the number of yards of such plastering, was less than the number claimed in the petition. It seems to be claimed by the defendant in error, that such, diminution resulted from a difference in'the way of measurement by one witness, from that pursued by the other; but this does not appear from the record ; and we think that the defendant was entitled to have the testimony go to the jury, for all that appears to the contrary in the record. 5. Charge to Íaw¿fSdfe-d cusaed. V. With respect to the refusal of the court to instruct the jury, as requested by defendant below, in instructions numbered six and eight, we are not able to say Q ^ that ^ was wrong. Ordinarily, as before intimated, the sixth instruction would be incorrect; and there is nothing in this record going to show that a different rule should be made to apply in this ease. Why the court refused the eighth instruction, we are not informed. The record does not purport to show all of the instructions, and it may have been on the ground, that the substance of the charge had already been given to the jury. As to the charge designated as explanatory of the fifth instruction, it seems to be worded in such a manner as to be liable to mislead the jury. And yet the idea which was undoubtedly prominent in the mind of the court, and which was intended to be conveyed to the — 240 — jury, was correct. This, as we understand it, was to the effect that it was the duty of the plaintiff below, in order to recover, to show that he had performed his work “ in a good and workmanlike manner,” according to the contract between the parties. If the court had, in such explanatory instruction, inserted after the words “Atchison and vicinity,” the further condition, “and the contract was made by the parties with the expectation that such materials were to be used in the job,” then the law would have been properly presented to the jury. On a new trial this can be done. The judgment of the district court must be reversed, and the cause remanded for a new trial. All the Justices concurring.