
    Jonathan Donnel v. W. S. Clark.
    July Term, 1873.
    1. Bill of Particulars: Statement of Pacts. A bill of particulars -which recites a written contract, whereby C. agreed to deliver 1,000 or more ties of a specified size and quality, and D. to pay 50 cents for each tie so delivered which should pass the inspection of the agent of a railroad company; and alleges that C. delivered 1016 ties of the size and quality specified; that they wei*e accepted by D., and were of the value of 50 cents each; that C. duly performed all the conditions of the contract; that D. paid on account thereof $249; and that there is still due thereon $259, — is sufficient without alleging specifically that such ties passed the inspection of the agent of the railroad company.
    2. Contract: Waiver of Condition. Where a party to whom railroad ties are to be delivered under contract is not, by the terms of such contract, bound to accept any pay for any ties rejected by the inspector, yet if he does accept them he waives the want of inspection, and becomes liable for the contract price.
    3. Evidence: Hearsay: Immaterial Error. Statements of the agent of a railroad company, made after the inspection, as to the reasons for rejecting certain of the ties, are hearsay testimony, and should not be admitted in evidence; but when it clearly appears that such statements could not have wrought any prejudice to the rights of the plaintiff in error, the error will not compel a reversal of the judgment.
    4. Issues: On Appeal. A defendant having filed an answer to a bill of particulars in a justice’s court, and no new pleadings having been filed, the district court, in the trial of the case on appeal, may limit the investigation to the issues made by the pleadings in the justice’s court.
    Error from Neosho district court.
    The case is stated in the opinion.
    
      Stillwell é Baylies, for plaintiff in error.
    The promise of Donnel in the contract sued on, “to pay the sum of fifty cents for each tie which should bear the inspection of the railroad company’s agent,” was a plain and positive condition precedent; and before Clark could recover it was necessary for him to allege and prove the performance *of this condition. Grafton v. Eastern Co. Ey. Co., 8 Exch. 699; Bank of Poughkeepsie v. Ibbotson, 24 Wend. 447; 1 Chit. PI. 321. The ommission to allege the performance of this condition precedent is not helped or cured by the allegation in Clark’s bill of particulars “that he duly performed all the conditions of said contract on his part to be performed,” for the reason that the inspection of the ties, as provided in the contract, was not an act to be performed by Clark in any respect whatever. He had nothing to do writh the inspection of the ties; that was to be done by a disinterested third party. But it is claimed that the allegation in the bill of particulars, wherein he states that “Donnel received and accepted the ties,” dispensed with the inspection by the agent of the company. Neither his bill of particulars nor the contract sued on will bear that construction.' The ties were first to be delivered, and then the agent of the company -was to inspect them, and Donnel was to pay for the ties which should pass this inspection, and no more.
    But the defendant in error says that great strictness in pleading does not obtain in justices’ courts, and therefore the bill of particulars should be regarded as sufficient. But can a party, even before a justice, omit to allege in his pleading a fact the existence of which is the entire foundation of his claim, and then say that because he sued before a justice it made no difference? He “must state, in a plain and direct manner, the facts constituting the cause of action.” •Justice’s Act, § 72. The most máterial fact tending to vest in the plaintiff a right of action on the contract sued on was the fact that these ties had borne this required inspection. The ties would be worthless to Donnel unless the railroad company would use them in building their road, and hence the absolute necessity to him of this provision. Had Clark averred that Donnel expressly waived this inspection that would have put a different face on it, as that would have been, in effect, declaring on a new contract; but he brought his suit on the written contract, and by it the rights of the parties must be determined. The court erred ip allowing evidence to be introduced, over Donnel’s objections, in support of a *cnuse of action so defectively stated as was that of the defendant in •error. Between 70 and 80 ties, it seems, failed to pass inspection, and were absolutely rejected; and yet, in this action, based on this written contract, with nothing ambiguous or doubtful about the promise of plaintiff in error, and no allegation in the bill of particulars to show a waiver or a new or substituted contract, the defendant in error was allowed to go outside of it, and to introduce proof and recover for ties which were rejected by the company. This court will not say that this was not erroneous.
    Clark’s evidence in regard to the conversation he had with the inspector, and what the inspector said in excuse for rejecting some of the ties, was clearly incompetent. It was not proper as being a part of the res gestee, for the inspection that was talked about at the time was a past transaction, and the inspector could not even have bound his principal — the railroad company — by any declarations or statements about it made after his duty and authority in the premises had ceased. A fortiori, his statements of the reasons that caused him to reject some of the ties could not, by any possibility, have been evidence against Donnel, between whom and the inspector there was no privity whatever. Clark’s evidence concerning this conversation with the inspector was prejudicial to plaintiff in error. “Where testimony is erroneously received that may have influenced the jury in finding their verdict, the error cannot be considered immaterial.” Tefft v. Wilcox, 6 Kan. *56; Gilleland v. Schuyler, 9 Kan. *569.
    Clark, at the close of his cross-examination, made this statement:
    
      “It was the understanding between me and Butterfield that I was not to look to him for pay for ties under this contract, but to Donnel.”' At the beginning of his redirect examination, in response to a question by his counsel, he further said: “It [that is, the understanding-that Butterfield was to be looked to for pay] was also the understanding between Donnel and me.” This assertion was brought out by-Clark’s own counsel. Donnel, of course, had a right them *to know all about this understanding for various reasons. Im the first place, if Clark had discharged Butterfield by any private arrangement between the two, which Clark swore Donnel knew all, about, that would undoubtedly have discharged Donnel also to the extent of “the proper proportion of the debt or demand for which the-person released [Butterfield] was liable.” Gen. St. 183, e. 21, § 5. Yet, when questions were put to Clark calculated to elicit information on this subject, on Clark’s counsel objecting, the court refused to allow them to be answered. This certainly was error Hutchings é O'Grady, for defendant in error.
    No particular skill is required in pleading before a justice of the> peace. The mere filing of the original contract with a claim for judgment is sufficient. Brenner v. Weaver, 1 Kan. *488. The bill of particulars states that Clark “duly performed all the conditions of; said contract on his part to be performed,” and “that said defendant received and accepted” 1016 ties. This is a sufficient allegation of; the performance of conditions precedent.
    The allegation that Donnel “received and accepted” the ties, if; proved, excuses both allegation and proof of performance of the condition requiring an inspection of the ties.
    Under the pleading in this case it is claimed by Clark that the ties delivered were all of the quality specified in the contract, and that Donnel “received and accepted” them as such. It is shown that the-inspector rejected 70 or 80 ties. The court permitted Clark to show-that these ties were equal in every respect to those which were ap-. proved by the inspector. The action of the inspector was not conclusive; and for that matter, Clark could recover under the contract,, if no inspection whatever had been made, provided Donnel “received* and accepted” the ties, and they were of the quality specified in the-contract. Donnel and Butterfield were jointly and severally liable-under the contract, and, there being no service on Butterfield, the-court properly rendered judgment against Donnel alone.
   *Brewer, J.

Defendant in error obtained judgment, first before a justice of the peace, and again, on appeal in the district court, against plaintiff in error, for railroad ties delivered in pursuance of a written contract. Of this judgment plaintiff in error complains, and alleges — First, that the bill of particulars was insufficient, and that the court erred in allowing any evidence to be introduced over Donnel’s objections. The contract was made a part of the bill. of particulars. It was between Clark on the one side, and Donnel and one I. G. Butterfield on the other. By it Clark agreed to deliver on the line of Tebo and Neosho railroad from 1,000 to 5,000 ties of a certain size and quality, and Donnel and Butterfield agreed to pay 50 cents for each tie so delivered which passed the inspection of the agent of the railroad company. The bill of particulars further alleged that Clark duly performed all the conditions of the contract; that he delivered 1,016 ties of the kind and quality specified; that they were accepted by Donnel and Butterfield, and were of the value of 50 cents each; that Donnel and Butterfield paid on account thereof $249, and that there is still due $259. We think the bill of particulars amply sufficient. Independent of the written contract, if Clark delivered and Donnel and Butterfield accepted 1,016 ties, and such ties were of the value of 50 cents each, the law would imply a contract, and a promise to pay that sum. By the contract Donnel and Butterfield were under no obligation to accept any ties which did not pass inspection, but if they did accept them, they waived the necessity of inspection and became liable for the contract price. The inspection was a condition for their benefit which an acceptance of the ties waived. There was no error in admitting evidence under the bill of particulars.

Another assignment of error is that the court permitted Clark to testify as to a conversation with the tie inspector, and the reasons given for rejecting certain of the ties. The *testimony was as follows: “I went to the inspector and asked him why he rejected some of the ties, when they were better than the first lot. He said the company had given him strict orders, and he must obey.” While this testimony is plainly incompetent, as mere hearsay, we are unable to see how it wrought any prejudice to the plaintiff in error. By the contract he was bound to pay for only such ties as passed inspection. He had no control over the inspection, and was in nowise responsible for the manner in which it was conducted, or the reasons of the inspector for rejecting any of the ties. The inspector was not the agent of either party, but of the railroad company alone, and his declarations, disconnected from the act and time of inspection, would be, in favor of either party, only hearsay. If there was In his answer anything which tended to show any interference or any influence on the part of the plaintiff in error, there might be some possibility of its havilig prejudiced the jury against him. But as it was, it could have created no prejudice, and certainly did not affect the rights of the parties. So the error was immaterial, and may be disregarded. But it is said that it plainly appears that 78 of the ties were rejected by the inspector, and yet must have been taken into account by the jury in making up the amount of the verdict. This is true; but it also appears by uncontradicted testimony that they were all taken by the railroad company; that they were worth fifty cents each, and that Donnel said to Clark “they were all right, — he would pay when he got the money.” The jury might well infer from this, as well as from much other testimony, that Donnel received all the ties, waived the inspection, and undertook to pay for all. There was testimony amply sufficient to sustain the verdict.

Another assignment of error is thus presented by counsel for plaintiff in error: “Clark, at the close of his cross-examination, made this statement: ‘It was the understanding between me and Butterfield that I was not to look to him for pay for ties under this contract, but to Donnel.’ At the beginning of his redirect *examination, in response to a question by his counsel, he further said: ‘It [that is, the understanding that Butterfield was not to be looked to for pay] was also the understanding between Donnel and me.’ This assertion was brought out by Clark’s own counsel. Donnel, of course, had a right then to know all about this understanding, for various reasons. In the first place, if Clark had discharged Butter-field by any private arrangement between the two, which Clark swore Donnel knew all about, that would undoubtedly have discharged Donnel also to the extent of ‘the proper proportion of the debt or demand for which the person released [Butterfield] was liable.’ Gen. St. 183, c. 21, § 5. Yet, when questions were put to Clark calculated to elicit information on this subject, on Clark’s counsel objecting, the court .refused to allow them to be answered.”

A sufficient answer to this is that this testimony was not pertinent -.to any issue raised by the pleadings. In response to Clark’s bill of particulars Donnel -filed an answer tendering certain issues, and it •was proper for the court to limit the inquiry to the issues thus made. 'True, this answer was filed in the justice’s court, and it may be that -.no answer was necessary. Justice’s Act, § 71. But the district court might have required new pleadings. Laws 1870, p. 184, § 7; German v. Ritchie, 9 Kan. *106. Finding pleadings already prepared and filed, it was proper for the court to limit the investigation to the issues presented by these pleadings. If the parties desired to present other issues, they should have sought an amendment of the pleadings. Some other points are presented by counsel for plaintiff in error, but none of them seems to us sufficient to justify us in disturbing the judgment of the district court, and it will be affirmed.

(All the justices concurring.)  