
    *John Kugler v. Thomas J. Wiseman and Henry W. Borchelt.
    The judgment of an inferior court will not he reversed on error for an erroneous charge to the jury, unless such charge he upon questions material to the ease, and such as have resulted prejudicially to the plaintiff in error. 
    
    Where persons agree on the 18th of April, in writing, to perform certain work by August 1st, and the written contract is signed by the parties, and is . also signed by a surety as such, for the performance of the work, and afterward, the work having been commenced, is suspended at the instance of the party for whom it was contracted to be done, with the intention not to have the work completed, and again resumed a month after the time fixed by the contract for the completion of the work, at the instance of the party for whom the work was, by the contract, to be done, upon his promise to pay, over and above the contract price, the additional cost of the work, in consequence of an increase in the price of wages and materials, and the work being finished in January following, suit is brought, not on the contract, but for the work and labor, the original contract is competent evidence to the plaintiffs, and it is no objection that the surety is not a party plaintiff.
    In such case it is competent, as a means of arriving at the increased cost of the work, in consequence of a rise in the price of wages and materials, to inquire of a witness generally the difference in the price of wages and materials in the spring and summer months, and the fall and winter months—although the question is not limited to the particular year in which the work is done. Inquiry may be made as to the difference in prices generally, and then ascertain whether the difference in this particular year varied from others.
    It is competent to prove, in such case, the difference in the way of per centum, between the price of materials and labor in the early and latter part of the year 1846 (the year the work was done).
    In such case, the surety in such contract is a competent witness for the plaintiffs seeking to recover for their work and labor. The suspension of the work released the surety from liability.
    In such case, the party sued for the work, being entitled, under the statute, to swear to his book-account against the plaintiffs, but not availing himself of the privilege, can not offer his book of accounts in evidence against plaintiffs, upon proof that the book is his book of accounts; that the plaintiffs compared their memorandum book with it at one time, and there appeared to be no difference, so far as the witness observed—being at that time engaged about his own business in posting books.
    The suspension of the work by the party for whom it was to be done, until after the time when the work was to have been completed, releases the other parties from obligation to complete the work under the contract, and puts an end to contract; but the party thus suspending the contract is liable for a breach of it.
    
      In the case stated, the plaintiff is entitled to recover for labor and materials before the suspension of the work as well as after. If, after the plaintiffs had been released from the contract, by the suspension of the work, a new contract was made by which the work was resumed, it is for the jury to determine what that contract was, and whether time was to be given as in the original contract, for making a portion of the payments for the work.
    *Error to the Supreme Court of Hamilton county.
    The original action wás assumpsit, commenced by Wiseman and Borchelt against Kugler, in the court of common pleas of Hamilton county. The declaration contained the common counts, for work and labor, goods sold, money paid, had and received, etc.
    To this declaration the then defendant, Kugler, pleaded the general issue, and gave notice of set-off.
    At the November term of the court, A. D. 1849, the case was tried by a jury, a verdict returned in favor of Wiseman and Borchelt, and their damages assessed at ,175. A motion was then made for a new trial, by Kugler, which was overruled by the court, and judgment entered upon.the verdict. Kugler, by his counsel, then presented a bill of exceptions, which was signed and sealed by the judges, and made part of the record.
    The bill of exceptions is of great length, setting forth all the testimony in the case; but it is believed that sufficient appears in the opinion of the court to show, not only the points decided, but also the evidence, so far as it had any reference to those points, and it is deemed unnecessary, by the court, to insert in the report the bill of exceptions at length.
    The errors assigned in the Supreme Court were:
    “ 1. The court of common pleas admitted improper and illegal testimony, and ruled out competent and legal testimony.
    “ 2. The court erred in its charge to the jury.
    “3. The court refused to charge as requested.
    
      “4. The court refused to grant a new trial.
    “5. The court gave judgment for Wiseman and Borchelt.”
    The Supreme Court of Hamilton county affirmed the aforesaid judgment, and this writ of error is prosecuted to reverse the judgment of the Supreme Court.
    The errors assigned in the court are, in substance, that the Supreme Court erred in affirming the judgment of the court of common pleas.
    
      *Fox & French, for plaintiff in error:
    I. The plaintiffs, in order to sustain their action, gave in evidence the original agreement between the parties, dated April 18, 1846. It purports to be an agreement between “ John Kugler of the one part, and H. W. Borchelt and Thomas Wiseman, principals, and John Wiseman, as security, all of Cincinnati, of the second part."
    
    By this agreement, the party of the second part, for $5,300, agrees to furnish materials and labor for erecting three houses, etc.
    The first exception is on the admission of the contract offered by the plaintiffs below, to the admission of which the defendant below objected, because it was a contract in the name of Kugler, on the one part, and Thomas J. Wiseman, Henry W. Borchelt, and John A. Wiseman, of the other part, and the latter was not a party plaintiff in the cause. Stage v. Olds et al., 12 Ohio, 147; 12 Ohio, 167 ; 1 Chit. PL 6 ; 2 Greenl. Ev., sec. 110 ; 3 Scam. 536; 8 Shep. 111; 2 Ib. 295.
    II. Another question propounded by the plaintiff in these words was objected to, viz: “ State generally what is the difference in the prices of labor and materials in the spring and summer months, and fall and winter months, particularly lumber and bricks, and carpenters’ work and bricklayers’ wages.”
    The objection urged to this question was, that the question was not confined to the year 1846.
    It appears perfectly clear that the question ought to have been confined to the year 1846—what difference did it make in the case if there was any such increased price in 1844 or in 1848?
    Again, the question was objectionable because it was to prove a general fact instead of a specific fact.
    III. Another objection urged during the progress of the trial, was as to the admissibility of John A. Wiseman to testify in the cause. He was offered by the plaintiffs, objected to by the defendants, but the objection was overruled.
    Mr. Wiseman is one of the contracting parties, and as such, *was directly interested in the event of the suit. It is claimed he was a surety merely, and therefore competent. If we admit the fact that he was a mere surety (which we do not), the principle is the same. He was directly interested ih establishing the cause of the complainant, for, by so doing, he would relieve himself from liability on the contract with Kugler. But the fact is, this is a joint contract. 12 Ohio, 167.
    IV. We asked the court to charge, that all the plaintiffs could recover in the action is the value of the extra labor and materials occasioned by the suspension of the work, provided the original contract was not altered or changed further than to pay for any extra price which such materials and labor cost.
    This the court refused to give, because, they said, if there was no other alteration, no recovery could be had.
    Now, it is well settled that where a carpenter or builder agrees to erect any building for a particular sum of money, but additions or alterations are afterward made, the tradesman is bound by the contract as far as it can be traced, and entitled to recover on a quantum meruit for the excess only. 2 Com. on Cont. 360.
    So in Wright v. Wright, 1 Litt. 182, it is said, as far as it (the contract) can be traced, the parties should be bound by the contract, and for any excess of labor in consequence of the enlargement of the plan, etc., damages commensurate with the value may be recovered. Bank of Columbia v. Patterson’s Adm’r. 7 Cranch, 299; 2 Pet. Cond. 501; Story on Bailments, see. 441.
    And in Chitty on Contracts, it is said, “ and where additions are ordered and made to a building which a workman contracts to repair or erect and finish, for a certain sum, the original contract shall exist as far as it can be traced to have been followed, and the excess only paid for according to the usual rate.”
    V. The third charge asks the court to instruct the jury, that the plaintiffs can not recover the items of $1,325, due in six months, and $1,325, due in twelve months after the buildings *were completed, because they were not due when the suit was.brought.
    The modification of the charge can not affect the case, because there was no evidence of an abandonment of the contract—no evidence that either party did not rely upon the original contract for everything, except as to the additional compensation by reason of any rise in the price of.materials. The party himself, on the trial, relied upon the original contract, as still subsisting, to prove the value of the work done and materials furnished. Without this contract he offered no evidence as to the value of the work done.
    VI. The fifth charge asked, was, that if there is no evidence of any new contract except as to the additional cost of the work and materials, the written contract must govern the parties as to time of payment, without regard to the question whether the defendant has paid money faster than the same was due. Chit, on Cont. 566; Koon v. Greenman, 7 Wend. 123. .
    YII. During the progress of the trial the defendant offered in evidence the original book of items, showing the amounts actually paid to the plaintiffs during the progress of the work, connected with the testimony of Richard Lloyd, who stated that he was present (in the office of P. Andrews, for whom he is clerk, and where Kugler also kept his office, near to the buildings in question), about the time the buildings were nearly finished, when Wiseman, one of the plaintiffs, and Kugler, came into the office; that Kugler then took the book in question, which the witness identified, and Wiseman also had his memorandum-book; they then compared notes, and they appeared to agree in relation to the items entirely, and there was no difference between them j there was no objection raised by Wiseman to Kugler’s account.
    The question is, can not this book, with the evidence of Lloyd, be submitted for the consideration of the jury? We do not claim it is conclusive, but ask if it is not competent ^evidence to-be left to the jury as an admission made by the party. Greenléaf on Ev., see. 199.
    It is well settled that if a merchant renders an account to another merchant, and it is not objected to, it is considered as allowed. 1 Greenleaf on Ev., sec. 197; Freeland v. Herron, 7 Cranch, 147 3 Johns. Ch. 575; 1 Stark. 327; Coe v. Hattere, 1 S. & R. 406.
    YIII. It is claimed, however, that the contract was evidence to show the original amount of the contract price, and that for all •the extra price the two plaintiffs (and not they and John A. Wise-man) alone could recover. If this was so, still the verdict is wrong, because in that view of the case, all that these plaintiffs could recover would be the extra price or cost of materials and labor; but they have added to the original price twenty per cent, for extras, and in that way only can they begin to sustain the verdict.
    But this view is directly contradicted in 2 Fair. 348; Robinson v. Godfrey, 3 Com. L. 101; 4 Wend. 291.
    Every authority cited by defendants in error, when examined will be found to sustain every position assumed by the plaintiff in ■error. They establish these principles:
    
      1. That where a special contract has been made, it is binding upon the parties, both as to price, terms of payment, etc.
    2. That if additional or extra work has been done, or if the work has been delayed and again resumed, and done and accepted, the contract is binding, so far as it goes, and the value of the additional work, or the extra price occasioned by the season of the year in which it was done, may be recovered. (In this case this was the exact agreement made.) The agreement made, and the one which would have been implied if no agreement had been made, are the same.
    3. If the original contract was in the name of two, and the extra work was done in addition, both original parties may recover for the original price, and for the additional price.
    Pugh & Pendleton, for defendants:
    ♦Kugler directed Wiseman and Borchelt to stop the work and abandon the contract of April 18,1846. Some time afterward, however, Mr. Kugler made application to Wiseman and Borchelt to renew the contract and proceed with the work. They refused to do so, it appears, because the delay would throw the job on their hands during the fall and winter months, when wages, materials, etc., were commanding much higher prices than during the months originally allotted for it. Mr. Kugler assented to the justice of this objection, desired them to undertake and finish the houses according to the original plan, and promised to pay them (specifying no times of payment) the enhanced value of the work and materials. He declared his perfect willingness, also, to pay whatever “any man” would say was right.
    On this footing, as the proof shows, Wiseman and Borchelt recommenced the work. The surety, John A. Wiseman, was not even notified of the renewal; much less, therefore, did he consent to become liable again. And after all the work had been completed, Kugler told him, the surety, that he had never expected to hold him.
    We claim, then, to recover the price and value of labor performed and materials furnished by Thomas J. Wiseman and Henry W. Borchelt for John Kugler, in the erection of three houses; which labor was performed, and which materials were furnished under a parol agreement or contract, to which John A. Wiseman was not a party, and of which (at the time it was made) he knew nothing. The agreement was that the defendants in error should-perform the work and furnish the materials specified in a certain paper and in'the manner therein specified ; which paper purported to be a contract signed by John Kugler of the one part, and Thomas J. Wiseman and Henry W. Borchelt, principals, of the other part, and to which also, as surety, John A. Wiseman had pub his name. And which paper—the contract of April 18, 1846— furthermore, had once been a contract between its signers, but had been set aside, and abandoned, at John Kugler’s own instance. We *claim that the defendants in error, by that parol agreement, were entitled to receive the compensation mentioned in that paper (§5,300), and such further sum as the increased rate of wages and price of materials in the fall and winter months of the year would render honest and l’easonable.
    On this claim, and no other, the jury found a verdict, and the court of common pleas gave judgment.
    The plaintiffs below proceeded with their evidence in this order:
    1. They proved, by exhibiting the paper, the quantity and bind of work to be performed and-materials to be furnished.
    2. They proved that the paper was no longer a contract, and at whose instance it was abandoned.
    3. They proved the terms of the parol agreement.
    4. They proved the fact of an increase in the rate of wages and prices of materials during the fall and winter months of every year, and the reasons for it.
    5. They proved that the year 1846 was not an exception to the course of other years.
    6. They proved what was the rate of increase, in 1846, both as to wages and materials.
    I. Was the contract of April 18, 1846, competent evidence? It was offered as any specification, memorandum, or other document, which the parties had before them, or to which they made reference, might have been offered. The parol agreement, upon which we sued, referred to the paper as specifying the work to be performed and the materials to be furnished, and as aiding the parties to fix the compensation payable. Jewett v. Weston, 2 Fair. 346.
    The paper was competent and necessary, also, as a standard for estimating the price payable under the parol agreement. Jewett v. Weston, 11 Maine, 348.
    II. The general question as to difference in value of labor and materials in spring and fall. 2 Phil. on Ev., Cow. & Hill’s Notes, 294; Seller v. Norman, 4 C. & P. 80; Dwight v. Brown, 9 Conn. 83.
    *111. Was John A. Wiseman a competent witness? We claim he was. Stage v. Olds, 12 Ohio, 167; Smethurst v. Woolston, 5 Watts & S. 106.
    An objection to the witness, in limine, must be certain, clear, and apparent; for if his competence be doubtful or depend upon further developments, he will be sworn—subject to the court’s charge or subsequent direction.
    We offered testimony which tended to prove, in the court’s opinion, an abandonment of the written contract; we then offered John A. Wiseman as a witness, and his evidence was received. But the court instructed the jury, time and again, that unless we had proven the abandonment claimed, to the jury’s satisfaction, we could not recover anything—neither with nor without John A. Wiseman’s evidence.
    IV. Defendant below asked the court to charge that, if the original contract had only been altered in respect of the pfiice to be paid, the plaintiffs below could only recover a certain amount The court charged the jury that, in such an event, we could recover nothing.
    Now, when a party can gravely assign, for case of error, that the court gave him more than he asked, we do not think it a matter for argument.
    V. The third instruction prayed by the plaintiff in error was, in effect, that the times of payment specified in the written contract had been carried into the subsequent parol contract, and that, therefore, two installments of money were not due.
    This was a question of fact, to be determined by the jurors themselves. The abandonment of the written contract, and the terms of the parol contract, were the very matters in dispute. But the court told the jurors to examine this evidence, and to give effect, by their verdict, to any contract which the parties might have made; and that, if no specific price had been fixed, they must take the market price, at the time, as a rule for ascertaining the value. This instruction, we submit, was perfectly correct.
    *V1. The fifth instruction prayed is divisible into two branches. The court has given the first branch,.in charge, by its first instruction. The second branch, we submit, was unwarrantable, and properly refused. Any and every variation from the terms of a written contract, by the express or implied assent of the parties, must afford some proof upon the question whether the contract was or was not abandoned. To have instructed the jury that any variation could have no effect in deciding that question, would clearly have been erroneous.
    TIL Was-Kugler’s book of account competent evidence ? We claim not, for these reasons:
    1. Mr. Kugler did not offer to swear to its correctness, as the statute, in the case of a book-account, requires.
    2. It was not proven to be in' the handwriting of a clerk who was either dead or absent. 1 Phil. Ev. 259.
    3. It was not even proven to be in Kugler’s own handwriting. 1 Greenl. Ev., sec. 118.
    4. The entries were not proven to have been made contemporaneous to the payments or transactions themselves. 1 Greenl. Ev., see. 118 ; Walker v. Bollman, 8 Watts, 544.
    5. Besides the charges for articles said to have been obtained from people living in Cincinnati, by the plaintiffs below, on Kugler’s order, the charges were all for money alleged to have been paid to Thomas J. Wiseman himself. Cram v. Spear, 8 Ohio, 494, decides that money paid is not properly proven by a book-account.
    
      Finally. The counsel for plaintiffs below asked this question : “ State the difference, by way of per centum, between the prices of materal and labor in the early and latter jiarts of 1846.”
    This was a proper question.
    Robson v. Godfrey, 1 Holt’s N. P. Cas. 85; Oldfield v. Lowe, 9 B. &. C. 73; Lucas v. Goodwin, 3 Bing. N. Cas. 737; Pepper v: Burland, Peake, 103; Dubois v. Delaware and Hudson Canal Co., 4 Wend. 285 ; 12 Wend. 334; Chit. on Cont. 110, 541.
    
      
       See the authorities upon this point cited in argument in Choteau v. Raitt; in Ash v. Marlow, and Washington Mut. Ins. Co. v. Reed & Brown, in this volume of Beports.
    
   ^Hitchcock, C. J.

The questions presented for the consideration of this court are precisely the same as were presented to the Supreme Court in the county of Hamilton, and although in form the case comes before this court by writ of error, it is, in fact, rather in the nature of a rehearing.

The record, including the bill of exceptions, is very voluminous, and various points of law were made and ruled, in the progress of the trial, in the court of common pleas, to the ruling of the court, upon which exceptions were taken, and in which ruling it is now insisted that the court of common pleas erred.- That court was requested by the counsel for the plaintiff in error, to give certain specific instructions to the jury, which were not given, and herein it is claimed there was error. It is further claimed that there was error in refusing a new trial. These several matters I propose to examine in the order in which they are presented by the record.

Before doing this, however, it may be proper to give a general view of the case, as presented by the bill of exceptions.

On April 18, 1846, a written contract or agreement was entered into between John Kuglcr, the plaintiff in error, of the one part, and Thomas J. Wiseman and Henry Borchelt, defendants in error, and John A. Wiseman, of the other part; John A. Wiseman signing as surety.

By the terms of this agreement, the party of the second part agreed, for the consideration of $5,300, to finish and complete three houses on East Front street, in Cincinnati, they furnishing the materials, of the dimensions and after the manner specified in the contract—to be completed on the 1st day of August then next following.

For this work Kugler agreed to pay $5,300; a part in advance; a part during the progress of the work; $1,325 six months after the buildings were finished; and a like sum of $1,325 in twelve months from the same time, with interest. Wiseman and Borchelt were to commence at and complete the building from the top of the cellar wall.

In pursuance of this contract, Thomas J. Wiseman and Borchelt *made preparations for and commenced the work. Quantities of lumber and other materials were prepared. At about the time they were prepared to put in, or were putting in the first tier of joists, Kugler, having sustained, or supposing he had sustained heavy losses in his business, and believing he should not be able to complete the buildings, put a stop to the work. This was probably the latter part of May, or some time in June. The exact time can not be ascertained from the testimony; but there is no controversy but that the work was suspended by his procurement. Ho visited New Orleans, and perhaps other places, and-ascertained that his losses had not been as great as he had apprehended. After his return to Cincinnati, he was anxious that the buildings should be completed, and applied to Thomas J. Wise-man, or "Wiseman and Borchelt, to persuade them to go on with, the work. Wiseman objected, on the ground that the work was to have been done in the spring and early part of the summer, when labor and materials were of less value than in the latter part of the summer and fall. Kugler urged him to go on, assuring him that he should lose nothing, and that he would pay in proportion, or according to this increased value. Finally, Wiseman and Borchelt went on with the work, and finished it in January following. It does not appear that John A. Wiseman had ever any concern with the work, or that he was a party to this arrangement, pursuant to which the work was recommenced, after it had been suspended. How long the work was suspended does not appear; but it would seem but a small portion had been dono when the suspension took place. One witness, and I think he is the only one who speaks of the recommencement, says he supposes it was recommenced about the last of August, or 1st of September, one month after, by the terms of the contract, the entire work should have been completed. Such is the general aspect of the case, although, owing to the diversity of testimony, there may, perhaps, as to some matters stated, be some doubt.

On the trial of the case, the plaintiffs below first offered in evidenee to the jury the written contract before referred to. *To this testimony the counsel for Kugler objected, because that instrument was signed by John A. Wiseman, and he was not a party to the suit. This objection was overruled by the court, and the written instrument went to the jury. In this, it is said that the court of common pleas erred. We think otherwise. The .action was not based upon the contract. It was a claim set up, not by the two Wisemans and Borchelt, but by Thomas J. Wise-man and Borchelt, to recover compensation for work and labor which they had done and performed for Kugler, not strictly in pursuance of that contract, but in pursuance of an arrangement made, as they claimed, after they had been prevented, by the act of Kugler himself, from the performance of that contract, but which had reference to it, so far as the price to be paid was concerned. It was an item of evidence which might properly go to the jury. The legal effect would depend upon other testimony, which might subsequently be introduced. But if, as Kugler’s •counsel contends, the work was done under this original contract, .and John A. Wiseman was a party to that contract, and should have been a party plaintiff, Kugler could not well have objected to the introduction, by the plaintiffs, of this contract, as the only effect would have been to prove themselves out of court.

In the further progress of the trial, the plaintiff’s counsel propounded the following interrogatory to a witness: “ State generally what is the difference in the prices of labor and materials in the spring and summer months, and the fall and winter months, particularly lumber and brick, and carpenters’ and brick-layers’ wages.” This question was objected to, because the question was confined to the year 1846—the year in which this4work was done. The court, however, overruled the objection, and permitted the question to be propounded and answered-. Now if the object was to ascertain the difference in this particular year, we do not see that there could be any substantial objection to the interrogatory, as propounded. Inquiry might be made as to the difference of prices ^generally, and then ascertain whether the difference in this particular year varied from other years.

Another witness was inquired of by the then plaintiff’s counsel to “ state the difference, in the way of per centum, between the price of materials and labor in the early and latter part of the year 1846.” To this question the counsel for defendant below objected, because the question was incompetent, as not showing the actual increased expense of the price of materials and labor to the plaintiffs, but the court overruled the objection, and permitted the question to be propounded and answered.

Whether the decision upon this question was proper, must depend upon the peculiar circumstances of the case, and the previous testimony in the case. The previous evidence conduced to prove that the original contract had been ended by the act of the defendant below. He had prevented the other parties to the contract from complying with that contract. Ho had caused them to suspend the work, after but comparatively little had been done, until long after the entire job should have been completed. Subsequently he persuaded them to resume the work under an engagement to pay them, in addition to the contract price, either the enhanced price of labor and materials in the latter part of the year, or what should actually be the increased cost to the builders in consequence of such enhanced price. What the contract was,, in this particular, the jury must determine from the evidence. The evidence not being perhaps explicit, it was proper that this question should be propounded and answered; and if the jury should be satisfied that the contract was for the enhanced price, as contended for by the plaintiffs below, then they would have the evidence before them from which to ascertain the amount.

Among others, the plaintiffs below offered, as a witness, John A. Wiseman, and he was objected to as incompetent, on the ground that he had signed the original contract, which had been given in evidence, and therefore was interested in the event of the suit. This objection was overruled, and he was *examined. This decision of the court was excepted to, and it is claimed to have been erroneous:

If John A. Wiseman could gain or lose by the event of the suit, then he should have been excluded. But it is impossible for this court to see how he could have gained anything, or could be subject to any loss. Counsel say that a verdict against the defendant below might, by possibility, prevent him from the recovery of any damage upon the original contract, in consequence of the work not having been well done. Even admitting this, which we do not, it does not constitute that direct and certain interest which is necessary to exclude a witness.

But the testimony introduced before this witness was offered, conduced to show that the performance of this contract had been prevented by the act of the defendant below, by which John A. Wiseman was discharged from any obligation imposed upon him by”that contract. And it conduced to show further, that much the largest portion of the work was done in pursuance of a new arrangement, entered into between Kugler and Thomas J. Wiseman, and Borchelt, after the time when, according to the original contract, the whole work should have been completed. To’this latter arrangement John A. Wiseman was not a party, nor had he in it any interest. We think he was a competent witness.

In the further course of the trial, and in making his defense, the then defendant brought forward a book, and proved by a witness that it was his (the defendant’s) book of accounts—in which was an account against the plaintiffs below. The witness further testified, that on one occasion, toward the close of the work, Wiseman was in the office, and had his memorandum-book with him; that Wiseman and Kugler were looking over the book of accounts and the memorandum-book, and that there appeared to be no difference between them. At this time the witness was engaged about his own business, in posting books. Having offered this testimony, the book itself was offered in evidence. It was objected to by plaintiffs’ ^counsel, and the objection sustained. In this, it is claimed, that the court erred.

We are not prepared to say that there was any error in this decision of the court. I suppose it was intended to infer from the circumstances, that the correctness of the account was admitted. Those circumstances were not sufficient to justify such inference. The defendant in error, under the statute, might have sustained his account by his own oath. This, for some cause, he did not do, and not having done it, I think the court very properly sustained the objection to receiving the book in evidence.

After the evidence in the case was closed and the arguments of counsel, the defendant below, now plaintiff in error, requested the court to instruct the jury, “that if they believed the original contract was only altered, so far as to pay for extra price of materials and labor done, between the price of such materials and labor in the time mentioned in said contract, and what such materials would be worth at the time the work was actually done, then all the plaintiffs can recover in this suit is the amount of such difference in the costs of labor and materials, and they can not recover the original contract price.”

In response to this, the court instructed the jury “ that if that was the only alteration the plaintiffs were not entitled to recover at all, because John A. Wiseman, under that view- of the case, would have a right to recover, and he was not a party.”

In this it is claimed there is error. I am not fully satisfied myself with the charge, but how the plaintiff in error can complain, is not so readily seen. His request was, that in a certain hypothetical state of case, the plaintiff below could recover only to a certain extent. The court replied that in such state of case, the plaintiffs could not recover anything. Admitting the court to be wrong, no injury was done to the plaintiff in error, unless it would have been better for him to have a verdict against him to a limited amount, than a verdict in his favor. For an error committed by an inferior court, the-^superior court will not reverse a judgment, unless that error was calculated to do an injury to the party seeking the reversal.

The plaintiff in error, by his counsel, further requested the court to instruct the jury “ that if they believed the defendant agreed to pay, in addition to the contract price, such additional price for materials and labor, as the cost of such materials and labor would amount to, more than the same materials and labor would have cost, if the buildings had been erected in May, June or July, according to the terms of the original contract, it is incumbent on the part of the plaintiffs to prove the amount, which the additional cost and labor amounted to, and they can only obtain such additional costs of materials and labor, in addition to the original contract.”

This instruction the court refused, but instructed as before, with the addition, “ that if a subsequent parol contract was made, by which the parties accepted the original contract to regulate the price, they must look to the evidence to see the difference between the old and new contract, that the plaintiffs would be entitled to the market value of labor and materials, according to the course of trade.”

As before, the court instructed, that in the hypothetical case supposed, there could be no recovery, but added, in substance, that if there was a subsequent parol contract, as claimed by plaintiffs below, the plaintiffs were entitled to the market value of labor and materials, without positive proof of the actual increased cost to them.

In this we think there was no error.

Again, the plaintiff in error requested the court to instruct the jury, that the plaintiffs can not recover in this case, the items of $1,325, due in six months, and $1,325, duo in twelve months after the buildings were completed, because the time for such payments had not arrived when this suit was brought.”

The court refused to give this instruction, as charged, but told the jury if the original contract was abandoned, they must look to the subsequent contract; and if by that there was *to be paid the $5,300, and also the additional price in the materials and wages, the plaintiffs were entitled to the fair market value in the rise of materials and labor, no matter what the same might have cost the plaintiffs.”

Did the court err in refusing this instruction as asked ? By the terms of the original contract, a credit was to be given, and the great struggle through the whole case seems to have been—on the one side, to make out that the work was done upon this contract, with some little addition of payment to be made for the rise of materials and labor, in consequence of the work having been delayed by the plaintiff in error; and on the other side, to establish •the fact that a subsequent contract was made, by which the old one was abandoned, with the exception of the price therein fixed to be paid for the erection of the buildings. That the original contract was not complied with, was not the fault of the builders, but of the owner of the property. In consequence of his supposed embarrassments, he stopped the work, and would not permit the builders to complete it according to contract, and he kept it suspended until the time had elapsed within which the work should have been done. Undoubtedly, by this conduct, the other contracting party was released from all'obligation under this contract. Not only so, but by his own conduct, the plaintiff in error had rendered himself liable to the other contracting party for a breach of the contract. That contract was put an end to.

At a subsequent period, and after the time when the buildings should have been completed, Kugler applied to the builders, requesting them to go on with the work. The evidence recited in the bill of exceptions, shows that they refused to do it, assigning for cause of refusal that materials and labor were more expensive in the latter part of the year, than at the time, when, by the terms of the original contract, the work should have been done, they would have been. In other words, that building was more expensive in the latter part of the year than in the early. The proposition was then made by Kugler, to pay this increased expense. At least such is the claim, and the *proof seems to warrant it. It does not appear that in this new arrangement anything was said about the time of payment. Whether there was such a new contract was for the jury to determine, and they have found that there was. At least they must have found this, in order to have found for the plaintiff. Besides, had the suit been brought upon the original contract, even had John A. Wiseman been a party plaintiff, there could have been no recovery, for the work was not done in accordance with the contract. By that contract it should have been done' by the 1st of August—it was not done until the January following. In some of the instruction requested, the counsel for plaintiff in error seem to suppose that, although the defendants in error might have recovered for the labor performed and materials furnished after the work was recommenced, yet they could not recover for the labor and materials furnished before -the work was suspended, because John A. Wiseman is not a party. How it is impossible not to understand the relation of these parties. True, John A. Wiseman signed the contract; but he signed as security that Thomas JWiseman and Borclielt would do the work and furnish the materials. It could not have been expected that he was to do one or the other. If they failed, he then would be liable. In no court could he gain anything. The only interest he had in the matter was to see that they performed the contract. Such is the commonsense construction of the whole matter. And under such circumstances, it seems to me that in an action like the present, they would be entitled to recover, as well for the work and labor performed, and materials furnished, before as after the suspension of the work.

If there was such a new contract as claimed by the plaintiffs, below, and in it nothing said as to the time of payment, then the court might well withhold the instruction last referred to.

Again, the court was requested to instruct the jury, “that if there is no evidence of any new contract, except as to the additional cost of the work and materials, the written contract must govern the parties as to the time of payment, without *regard to the question whether the defendant has paid money faster than the same was due. That the mere fact that Kugler has paid money faster than the contract called for, at plaintiff’s request, will not affect the matter, as to the times of jiayment mentioned in the contract.”

This charge the court refused to give, but instructed the jury in the hypothetical case stated, the plaintiffs could not recover at all.

If there was error in this, it certainly was not an error of which the plaintiff in error can complain. It was not an error by which he could be injured.

The next instruction requested was, “that the jury can not allow anything for extra wages-for work done, or costs of materials, by a per centage on the whole amount of the contract-price ; but must confine themselves to the actual advance prices paid for materials and labor furnished and performed; and that for all such items of materials and labor done and furnished at the same prices they would have been charged, if done or furnished in the time mentioned in the original contract, they are not entitled to additional credits.”

This charge was requested upon the assumed hypothesis that the original contract was still in force; that the work was done under it, and that there was no new contract except as to the increased value of labor and materials. The court had repeatedly told the jury that if such was the state of case, the plaintiffs could not recover at all. As to the instruction requested as last stated, the court refused to give it as requested, but charged the jury “that the difference might be estimated by a per centage, and they might ascertain the customary prices of labor and materials in the spring and fall, and allow the fair average difference, no matter what it cost the plaintiffs, whether more or less than the average.” This is complained of as error.

If the contract, in pursuance of which this work was done and the material furnished, was as claimed by the plaintiffs below; that is, if, when the work was resumed, the defendant below agreed to pay the original contract price, and in ^addition thereto, the increased price of labor and materials, in consequence of the advanced prices, then the increased price might be ascertained by ascertaining the per centage advanced, or in any other feasible manner. Such seems to have been the opinion of the court of common pleas, and we think it was correct in principle.

Other instructions were requested, which were given. Those above referred to, are all in which it is complained that any error intervened.

The last error alleged is, that the court of common pleas did not grant a new trial.

We have carefully examined the whole record, voluminous as it is, and from that examination, are satisfied that the verdict of the jury was in accordance with the evidence, and no new trial should have been granted.

The judgment of the Supreme Court is affirmed. 
      
       As to new trials, see note to Swan’s" Pwevised Statutes, 614, 496; 5 Ohio, 544; also Wilcox Dig. Exceptions must be taken to any ruling of the court at the time it is made, or such ruling can no't be assigned for error. Geauga Iron Co. v. Street, 19 Ohio, 300. The overruling of a motion for new trialbeeause the finding of the court or jury was against evidence, can not be re, versed on error unless the bill of exceptions discloses all the evidence. Wagers v. Dickey, 11 Ohio, 439, Hicks v. Person, 19 Ohio, 426.
     