
    George Allison v. Anton Horning.
    In an action to recover the amount due on a contract for work, when the testimony is conflicting as to the price agreed upon for the work, it is competent to show the value of such work at the time the contract was made, as tending to show what the agreed price was.
    Reserved in the District Court of Summit county.
    Anton Plorning brought his action, in the Court of Common Pleas of Summit county, against George Allison, to recover the amount claimed to be due on a contract for dressing and laying the stone walls of a building. The plaintiff in the action claimed, in his petition, that the price agreed upon' for the work was one dollar and fifty cents a perch. The defendant answered, denying that to be the price, and alleged that the contract price was one dollar and thirty-five cents a perch. This averment the plaintiff denied in his reply. On the trial, each party gave evidence, tending to prove the contract to be as he claimed in his pleading. It further appears, from the bill of exceptions, that, “During the progress of the trial, the plaintiff offered testimony, tending to prove what it was worth to do the work embraced in said contract, and to prove that it was worth more than the contract price, as claimed by himself.” This testimony was objected to by the defendant, and the objection was overruled. “ The plaintiff was permitted to prove that it was worth more to do said work embraced within the contract, as claimed by the plaintiff, than said plaintiff claimed the contract price to be; the court ruling that such evidence was competent, and might be used by the jury for no- other purpose than to enable them to ascertain which party was right in their respective claims as to what was the true contract between them.” The defendant duly excepted.
    The jury returned a verdict against the defendant, which he moved to set aside, on the ground that the court improperly admitted said evidence. This motion was overruled, and judgment was rendered on the verdict.
    The defendant thereupon brought his petition in error, in the District Court, to reverse the judgment of the Common Pleas for error, in 'overruling his objection to said testimony and his motion for a new trial. The case was reserved in that court for decision in the Supreme Court.
    Other matters contained in the record are not material to the only question made in the case.
    
      McClure ^ Omatt, for plaintiff in error:
    The issue made up by the record was not whether the parties had made a contract, or whether it was procured by fraud, but simply what price was agreed upon. Wé think the court erred in admitting the testimony, as to the value of the work, for the following reasons :
    
      1. There was no issue joined between the parties to which such evidence could even remotely be addressed.
    2. No reasonable inference could be drawn from it by the jury as to the precise fact or matter in dispute.
    3. It tended in no way to enlighten the jury as to the true nature of the contract, the terms of which were in dispute ; on the contrary, if it can be said to have had any tendency to prove anything, it was to establish another and different contract from that claimed by either.
    4. It tended to mislead and prejudice the jury.
    The admission of such evidence will encourage fraud. Contracts for such work are usually made orally, the parties alone being present. All contracts thus made for a price below the ordinary sum can readily be evaded, if a party need only to claim that a higher rate was agreed upon and support that claim by oath, and then he will be permitted to prove that his price was equaled or exceeded by the market rate.
    Again, the tendency of such evidence is to lead the jury, if in doubt as to what the contract was, to substitute another of their own creation for it.
    While sound reason and common sense would exclude such evidence in such case, the authorities are not silent upon the point. “ The evidence must correspond with the allegations, and be confined to the point in issue.” 1 Stark. Ev. 370 ; 1 Greenl. Ev., secs. 50-52.
    “When work is done at an agreed price per day, in an action for such price, evidence of the real value or cost ot the work is irrelevant. Estimates made by other persons than the real contractors, for a certain work, are not competent, as evidence of the value of the work after it has been completed.” ‘ 19 U. S. Nig. 290, sec. 640; also, 4 E. N. Smith (N. Y.), 367-512.
    “All evidence must have relevancy to the question in issue, and tend to prove it. If not a link in the chain of proof, it is not properly receivable.” Brightly’s Nig. 362; 4 Wal. 463.
    
      “ With respect to the nature of evidence: as the business of a trial is to ascertain the truth of the allegations put in issue, no evidence is admissible which does not tend to prove or disprove the issue joined.” 1 Stark. Ev. 370; 8 Peters, 386; 1 Car. & P. 262.
    “The court always protect the jury from irrelevant testimony by excluding it, on objection, in the same manner as they shut out other incompetent proof.” Cowen and Hill’s Notes to Phillips on Evidence, pt. 1, pp. 592-594; 3 Hawks, 122,123; '4 Litt. (Ky.) 272; 7 Martin N. S. La. 198.
    “ Remote and collateral facts, from which no fair and reasonable inference can be drawn, are inadmissible, for they are, at best, useless, and may be mischievous, because they tend to abstract the attention of the jury, and frequently to prejudice and mislead them.” 2 Stark, on Ev. 222, 223.
    In Ohio, as elsewhere, the same rule prevails in civil as in criminal proceedings, and vice versa, and that rule is this: the allegations and the proofs must correspond. See 11 Ohio, 404, 405.
    
      jEL. W. Ingersoll, for defendant in error:
    The original brief filed by counsel for defendant in error could not be found. In an additional brief is the following citation:
    “ Where there was a special contract between the parties as to the price per thousand feet that should be paid to the plaintiff' for drawing certain lumber over a particular route; but the parties disagreed as to what that price was, as fixed by the contract, evidence will be admissible, as bearing upon the probabilities of the case, to show what was the usual and common price paid at that time and place for similar services.” Sioain v. Cheney, 41 N. H. 232. This is the identical question raised in the case at bar.
   Day, J.

Did the court err in permitting the plaintiff to prove that the work embraced in the contract was worth more than he claimed the contract price to be ? It does not appear that the evidence was given in chief for the purpose of proving the contract price, which would have been inadmissible; but, for aught that is shown by the record, it was offered to rebut the evidence introduced by the defendant to prove that the contract price was less than that claimed by the plaintiff'. The only question made is, whether it was competent for either purpose. The disparity between the value of the work contracted for and the contract price claimed by the defendant was sufficient, we think, to render the evidence competent for the purpose of rebutting the evidence of the defendant, that the price agreed upon was less than that claimed by the plaintiff. It was a circumstance tending to weaken the probabilities in favor of the defendant’s claim, and to strengthen those in favor of the claim of the plaintiff'.

The only point of difference between the parties was the price for which it was agreed the work should be done. The evidence was admitted for no other purpose than to enable the jury to decide which of the prices claimed by the respective parties was the true price agreed upon. Of course, the weight of the evidence would be more or less affected by the other circumstances of the case, and be increased or diminished in proportion to the difference between the price claimed and the actual value of the work. But it was of some value, as tending to show the improbability of the claim of the defendant, and to enable the jury to arrive at the truth upon the point at issue between the parties, and "was, therefore, admissible for what it was worth, in connection with the other evideuce in the case.

Ve are sustained in this view of the case by authority. In Kidder v. Smith, 34 Vt. 294, it was held that, “when the testimony is conflicting as to the price agreed upon in the sale of personal property, it is competent to show the value of the property at the time of sale, as tending to show what the real contract was.” The chief justice, in delivering the opinion, said: “ The parties were in dispute, and their evidence conflicting — whether the defendant was to pay thirty-five or sixty dollars for the mare; and it became necessary to resort to circumstances and probabilities to determine which was right. As showing a probability in favor of the defendant’s version of the trade, we think it was competent for the defendant to prove the value of the mare to be even less than the sum he agreed he was to pay. "Where the disparity between the value of the property and what is claimed to be the contract price is small, and within the fair range of what different persons might esteem to be a fair value, such evidence would'be very slight, perhaps too slight to be admissible; but when the difference is very great, and beyond the range of fair difference iu judgment, it might be entitled to much weight, and the wider the difference, proportionably stronger would be the evidence furnished by it.” To the same effect are the cases of Kimball v. Lock, 31 Vt. 683; Bradbury v. Dwight, 3 Met. 31; and Swain v. Cheney, 41 N. H. 232. The action in Swain v. Cheney was brought on a special contract for drawing lumber over a particular route. The controversy between the parties was as to the price agreed upon for the work. The plaintiff claimed that it was one dollar and fifty cents per thousand, and the defendant claimed it was one dollar per thousand. Each party gave evidence to establish his claim. The court held that “ evidence was admissible, as bearing upon the probabilities of the ease, to show what was the usual and common price paid at that time and place for similar services.”

These cases are in point, and are decisive of the case before us. The judgment of the Common Pleas must be affirmed.  