Waldron v. Evans

• Decision Date: 31 December 1867
• Citation: 1 Dak. 11,46 N.W. 607
• Parties: Waldron v. Evans.
• Court: South Dakota Supreme Court

46 N.W. 607

1 Dak. 11

Waldron

v.Evans.¹

Supreme Court of the Territory of Dakota.

Dec. Term, 1867.

Error to district court, Clay county.

This suit was commenced in the district court of Yankton county on an account for services rendered and other items. At the first trial there was a verdict for plaintiff, which was set aside and a change of venue granted. The case was sent to Clay county, though defendant excepted, and insisted that it should go to Bon Homme, the court-house of which was nearer than that of Clay county. At the trial, defendant put his account-books into the hands of a witness to refresh his memory in regard to settlements between plaintiff and defendant on February 13 and September 2, 1865. He used the books for no other purpose, but tendered them to plaintiff that the latter might put them in evidence, which he did. The books contained this entry: “Settled this day with J. W. Evans [the plaintiff] all matters to date, except board from the 9th of June, 1865, and find due him $78.50, Sept. 2, 1865.” Plaintiff then called a witness who testified that this entry was not in the book when it was used at the first trial. To this defendant objected, on the ground that the plaintiff, having put the book in evidence, could not impeach it. The objection was overruled, and defendant excepted. The court gave the following instructions, defendant excepting: “(1) If the jury find from the evidence that a contract was entered into between the parties, which was made while the parties were under a mutual mistake as to material facts affecting its subject-matter, the plaintiff understanding that he was to do chores for his board and washing, and the defendant understanding that he was to do carpenter work in addition, then the contract is invalid, and may be avoided by either party in a court of law, and plaintiff may recover the value of his labor. To make a contract valid, the minds of the parties thereto should meet. Now if you should find that the parties did not agree in relation to what the plaintiff should do for the defendant, and what the defendant should do in payment therefor, there was no binding contract made, and the parties can each recover of the other in this action, for the items charged, in connection with the supposed contract, such sum as each reasonably deserves to receive for the same, as you may find from a fair balance of the testimony in relation to each of said items. (2) If the jury find from the evidence that a contract was entered into between the parties, by which the plaintiff was to do chores and carpenter work in consideration of his board and washing, and the jury further find from the evidence that the appointment of deputy provost-marshal or clerk to the provost-marshal constituted any part of the consideration of said contract, then they will treat such contract as absolutely void, and the plaintiff will not be precluded from recovering the value of his labor. (3) If the jury find from the evidence that a contract was entered into between the parties, by which the plaintiff was to do chores and carpenter work in consideration of his board and washing, and the jury further find from the evidence that a change made by defendant in...