
    Pierce v. School District No. Four, of Liberty Township, Marshall County.
    Where in an action to recover a balance due on a contract for building a school house, a copy of which contract was attached to the petition, and was signed by the secretary of the district, the averments of which petition was denied by the answer, the plaintiff first offered in evidence the instrument of writing attached to the petition, which was objected to, and excluded by the court; and where the plaintiff then called witnesses, and proposed to prove that he had called upon the directors of the school district for the contract, or a copy thereof, to work by in building the school-house, and that the directors delivered to him the instrument, and told him to work by the same, in building the house; and where the plaintiff proposed to offer the said instrument in evidence, as the contract between the parties, all of which evidence was excluded by the court; Held, That the court erred in excluding the evidence.
    
      Appeal from the Marshall District Court.
    
    Saturday, April 9.
    Suit commenced before a justice of the peace, to recover a balance alleged to be dute on a contract for building a school house. Upon appeal to the district court, certain evidence offered by the plaintiff, being objected to by the the defendant, was excluded by the court; upon this ruling of the court.,- and upon the ordering a non-suit, the errors are assigned.
    
      E. W. Eastman, for the appellant.
    
      T. Brown and H. 0. Henderson, for the appellees.
   Stockton, J.

The plaintiff attaches to his petition, and makes part of the same, an instrument of writing in the form of a contract between the parties, stating the size of the house to bo built, and the price agreed to be paid therefor, signed by the secretary of the school district. This instrument, the plaintiff alleges, was the basis of the contract between the parties, and the evidence of the terms of the same; and alleging that the house has been completed as required by the terms of the contract, and accepted by the defendant, he claims the sum of one hundred dollars, as due him from defendant on the contract. The defendant answers, and denies that any such contract was made ; denies that a school-house has been built by plaintiff, under the same, or accepted by defendant; and denies any indebtedness to the plaintiff on account of the same.

On the trial, the plaintiff offered in evidence, the instrument of waiting, attached to and made part of his petition ; the defendant objected, and the court refused to receive the evidence. The plaintiff then called witnesses, and proposed to prove, that he had called upon the directors of the school district for the agreement, or a copy of the same, to work by in building the school-house, and that the directors delivered to him the said instrument, and told him to work by the same in building the house, which he did ; and then proposed to offer the said instrument in evidence, as the contract between the parties. To this the defendant objected, and the court sustained the objection, and refused to permit the said evidence to go to the jury.

In this, we think, the district court erred. Issue had been joined between the parties, as to whether the instrument of writing set forth the agreement between the parties, and as to whether the house had been built according to the terms of the same. The evidence offered by the plaintiff, and rejected by the court, tended to prove both these facts, and should, consequently, have been received. If the fact was, that the parties had made another and different agreement, it was competent for them, at any time, to alter the same; and the evidence offered was altogether pertinent to show, that whatever might have been the contract as to the erection of the house, when the plaintiff' called upon the defendant for a copy of the same, by which to erect the building, it was then agreed between them that it should be built according to the instrument attached to the plaintiff’s petition, and which he proposed to give in evidence.

Judgment reversed.  