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HOLMES v. BOYDSTON.

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It seems that a deposition in a former cause, relative to the same question between the same plaintiffs and a co-ad ministrator of the defendant, is evidence.-Bondereau v Montgomery, 4 W. C. C. R., 186 ; See also Carpenter v. Graff, 5 S. & R., 162; Vincent v. Huff, 8 Id., 381; Smith v. Lane, 12 Id., 80.

And again, if the evidence is sufficient without the depo. sition, it is immaterial whether it should have been suppressed or not.Billingsley v. State Bank, 3 Ind., 375.

II. The third error assigned for sustaining the objection to the question asked Shatzer as to when plaintiffs were ready to go out to work; the fourth and eighth to rejecting evidence as to board of hands and hauling; the fifth for rejecting evidence of profits of the mill, and the sixth rejecting evidence of damages sustained by defendants; all involve a proper construction of the written contract, and the proper application of principles relating to performance and non-performance of contracts, and therefore the questions raised by these errors will be considered together. By the terms of the contract, Boydston & Heth agreed " to have the mill in which the machinery is to be erected complete with floors and stairs ready for the machinery by the first day of July, 1868,""to do, or have done, ALL THE HAULING of said machinery, and such lumber as is necessary for the completion of the work,"—and “to board the hands that Holmes, Gould & Co. furnish to put up said machinery while at work at the mill." The defendants did not have the mill ready with floors and stairs complete by the first of July, 1868, for the machinery, and did not have the same complete until some three months thereafter, and therefore utterly failed to perform the conditions precedent on their part to be performed, before the erection of the machinery by the plaintiffs.

Powell testifies that he "went out to the mill to put up the machinery for the first time on the 22d of August, 1868

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HOLMES v. BOYDSTON.

The rouf of the mill was not then on. The defendants said, after I should have been at the mill, that it wasn't ready at that time; they were disappointed about getting their stone work done. Before they had the floors and stairs all in, I think I must have been there a month or more; they didn't have the work all done at the time of the election in October, 1868.

Holmes testifies that “about the middle of July, 1868, Boydston was in the office, in Nebraska city, to get hands to put up the building of the mill."

Douglas testifies that at the time, to wit, the 22d of August, 1868, “the lower floor was partly laid, the upper was not,” and Shatzer says " the first floor was then half laid."

A party cannot take advantage of the non-performance of a condition in a building contract where such non-performance has been caused by himself, and he cannot complain of the other until he has put him in default by a substantial performance on his own part, and then a failure or refusal to perform on the part of the other. The defendants having so utterly failed to have the mill ready for the machinery until a long time after the time stipulated, they cannot take advantage of their failure, and therefore the court properly rejected evidence of damages by reason of delay in the completion of the work.-Smith v. Gugerty, 4 Barb., 614-21; Brown v. Cannon, 5 Gilm., 174 ; Resinger v. Cheney, 2 Id., 84; Chapin v. Norton, 6 McLean, 500; Caldwell v. Blake, 6 Gray, 402–9; People v. Bartlett, 3 Hill, 571.

Where a piece of work is to be done within a certain time, if the contractor fail to do it within the time, but is permitted to go on and finish it afterward, and the work is accepted, he may recover the price.-Cassady v. Clarke, 2 Eng., 123; Conrad v. Griffey, 11 How. 479; Taylor v. Williams, 6 Wis., 363 ; Nebbe v. Braughn, 24 Ni., 268.

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HOLMES v. BOYDSTON.

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The construction of a written agreement is the province of the court, and it is of the utmost importance that this province should not be invaded by the jury.-Welch v. Dawson, 3 Binn. 337; Denison v. Wertz, 7 S. & R. 372; Moore v. Miller, 4 Id. 279; Collins v. Banbury, 5 Iredell, 118.

The defendants agreed to do all the hauling and board the hands of plaintiffs. This is the contract, and the defendants are bound by it. Hence, the court properly rejected evidence of cost of hauling and boarding of hands. “Parties making a written memorial of their contract have implicitly agreed that in the event of any misunderstanding, that the writing shall be referred to as the proof of their act and intention.”—2 Phil. Ev. top p. 558, margin 665, note 494.

In the construction of agreements, the plain, ordinary and popular sense of the terms used should prevail.Hawes v. Smith, 3 Fairf. 429; see Rogers v. Kneeland, 13 Wend. 120; Mason v. Rowe, 16 Verm. 525.

3. The seventh, ninth, eleventh and twelfth errors assigned, all relate to the admission of evidence to discredit the witneesses, Hincks and Boydston, and therefore the questions raised by these errors will be considered together. Great latitude of examination may be permitted, arising from the disposition, temper and conduct of the witness, which can only be regulated by the discretion of the court.— Lawrence v. Barker, 5 Wend. 305 ; see Atwood v. Weston, 7 Conn. 66-70; Cameron v. Montgomery, 13 S. & R. 132; Starks v. People, 5 Denio, 108 ; Newton v. Harris, 2 Seld. 346; Brewer v. Crosby, 11 Gray, 29, 30; 2 Phil. Ev. top page 812, margin 971.

The judge, in the exercise of a sound discretion, may rightly permit an inquiry of a witness for reasons why he did certain acts, to test his accuracy of recollection, or affect his credibility, although it may have no direct tendency to

HOLMES v. BOYDSTON.

support or disprove the issue.—Gloucester v. Bridgham, 28 Maine (5 Shep.) 60.

May discredit a witness on the ground that he has corrupted, or endeavored to corrupt, another person to give false testimony, or done acts to procure persons corruptly to give evidence, etc.—2 Phil. Ev. top page 804, 5, margin

p. 962.

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• On the trial of Lord Stafford (7 How. St. Tr. 1400), proof was admitted on part of the prisoner, that Dugdall, one of the witnesses for the prosecution, had endeavored to suborn one of the witnesses to give false evidence.—2 Phil. Ev. top page 811, margin 971 ; Morgan v. Frees, 15 Bark. 352.

4. The thirteenth assignment is an alleged error of the court in giving the instructions to the jury asked by plaintiff; and the fourteenth is for refusing to give the fourth, fifth, seventh and eighth instructions in the form asked by defendants.

The first instruction asked by plaintiffs, submit wholly to the jury the finding of a certain state of facts, and that if the jury believe from the evidence such state of facts exist, then they may find the defendants accepted the mill and machinery and discharged the plaintiffs from all claims of damages.— Taylor v. Williams, 6 Wis. 363.

The substance of the second instruction, asked by plaintiff, is embodied in the first instruction asked by defend. ants, and the court answered both correctly.

The fourth, fifth and eighth instructions asked by defend. ants refer exclusively to extra work for which plaintiffs claimed pay. Although the slight modifications of these three instructions were correctly made by the court, yet, if it were otherwise, the defendants have no ground of complaint, for the verdict clearly shows that the jury gave plaintiffs no allowance for extra work.Huff. v. Earl, 3 Ind. 306; Eldred v. Hazlett, 38 Penn. 16. [S. C. N.]

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HOLMES v. BOYDSTON.

And it is not necessary that a proposition put by counsel should be answered in the words ; nor is it error that sev. eral points were answered collectively, relating to the same matter.-Geiger v. Welsh, 1 R. 349; Coates v. Roberts, 4 Id. 100.

The modification made by the court to the seventh instruction, asked by defendants, was proper, and submitted wholly to the jury to find whether or not, upon the evidence, the defendants accepted the machinery and work. manship thereon, in fulfillment of the contract; and that if the jury were satisfied from the evidence such was the fact, it would bar any claim by plaintiffs for damages, for defects, or inferiority in the machinery or workmanship. This was a fair submission of facts to the jury.

CROUNSE, J.

On the trial of this cause in the District Court several exceptions were taken to the allowance and rejection of testimony, as well as to the charge of the judge, the more important of which will be noticed.

The action was originally begun by Arba Holmes as sole plaintiff. Subsequently, by an order of the court, Gould and Powell, his former partners, were joined with him. Exception was taken to the reading of certain depositions taken in the cause prior to this amendment as to parties. The testimony taken in the depositions related to the value, in Chicago, of certain burr millstones, and was alike applicable to the case after, as well as before the aniendment, and there is no substantial reason for excluding the deposition.-Vincent v. Conklin, 1 E. D. Smith, 203,

By the terms of the written contracts under which the plaintiffs below were to furnish the machinery and place the same in the mill building of the defendants, the defend. ants were to have the building completed, with floors and

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