Rosewater v. Hoffman. the borrowed horse, who was induced to drop the prosecution. At another time, we are credibly informed, this confidential associate of His Excellency planned a safe burglary and sought to induce another man to join him in the enterprise. This may be a revelation to Governor Dawes, and will doubtless be a surprise to his man Friday, but the fact is very suggestive. Possibly Mr. Hoffman (thereby meaning this plaintiff), may be able to throw some additional light on the plot to rob the state treasury. Whatever the outcome may be, Governor Dawes will hereafter choose his companions and confederates with a little more care." In this it may be seen, occurs the following language "Not many years ago he was lodged in a Missouri jail for horse stealing, but only escaped service in the penitentiary by the generosity of the owner of the borrowed horse, who was induced to drop the prosecution," etc. Upon the trial defendant in error introduced a written agreement between himself and T. F. Barnes, the owner of the horse referred to in the published article, and which contract was as follows: "Articles of agreement made and entered into by T. F. Barnes, of the first part, and J. M. Hoffman, of the second part, witnesseth, that said T. F. Barnes agrees to furnish one horse and pay all traveling expenses in the purchase of additional homestead claims by said J. M. Hoffman, and said J. M. Hoffman agrees to give all his time in traveling to purchasing said additional claims, and it is mutually agreed by and between said parties that all of said business shall be transacted through 1st National Bank of Lincoln, Neb. The claims to be sent to said. bank and turned over to T. F. Barnes, for him to forward to U. S. Land Commissioner for approval, and when approved said claims are to be returned to said bank and to be forwarded to buyer, who shall pay the highest price known at the time of sale, and upon the return of proceeds Rosewater v. Hoffman. of sale of each claim the bank shall first take out their charges and take out all money advanced on said claim by said T. F. Barnes and commissioner's fees and pay to said T. F. Barnes, and shall then take out amount of purchase money (of said claim) yet due soldiers, and divide the balance equally between said T. F. Barnes and J. M. Hoffman, and amount of money due soldiers shall be sent to soldiers in df't in his name, and amount of profit due said J. M. Hoffman to be remitted to him by df't in his name or subject to his order. "This contract shall be binding and in force for one year. Said Hoffman is to continue said work for one year, and said Barnes is to make sale of said claims to the highest bidder known to him at time of sale, and each mutually agree to forfeit ($1,000) one thousand dollars to the other as liquidated damages for violation of this agreement. "Witness our hands and seal this 15th day of Dec., 1879. "T. F. BARNES, The court then instructed the jury, by its seventh instruction, in the following language: "If you find from the evidence that one T. F. Barnes delivered the horse in question to the plaintiff in error, and by virtue of and in execution of the written contract made between plaintiff and Barnes, then you are instructed that such horse was partnership property and that any disposition plaintiff made of said horse was not, and in law could not be larceny, or, more plainly, horse stealing." The objection to this instruction is, that the contract having been made between persons not parties to the record, and the same not being involved in any form in the suit in hand, it was not the province of the court to consider it, but that the whole question as to the rights of Barnes and defendant in error should have been left to the Rosewater v. Hoffman. jury. This, we think, is the correct rule. The rule is well settled that parol contemporaneous evidence is inadmissible to contradict or vary the terms of a valid written instrument, but this rule is applied only in suits between the parties to it. As between them, the contract must stand as written. But it should not be permitted to affect the rights of third parties, for as can be plainly seen, great injustice might result from the application of the rule as to them. This is clearly illustrated in the present case. Suppose the written contract had been such as to give defendant in error no interest in the property sold, and conferred upon him no right to dispose of it; that fact could not estop him, in a case like this, from proving the exact agreement, whether oral or written, under which he took it into his possession. The agreement was competent evidence to submit to the jury, but it was not competent for the court to construe it. See 1st Greenleaf on Evidence, Sec. 279. Borreda v. Silsbee, 21 How., 146. Etting v. Bank, 11 Wheaton, 57. For these errors the judgment of the district court is reversed and the cause remanded for further proceedings. THE other judges concur. REVERSED AND REMANDED. Everton v. Esgate. FREDERICK EVERTON, PLAINTIFF IN ERROR, V. 1. Trial: 2. Where a new NEW TRIAL: EXAMINATION OF JURORS. : Where an affidavit is filed in support of a mo- 3. Trespass. A mere trespass upon the land of another, by driv ERROR to the district court for Holt county. Tried below before TIFFANY, J. Uttley, Benedict & Sisley, for plaintiff in error, on misconduct of jury, cited: Proffatt on Jury Trials, Sec. 388. Special damages must be pleaded. Maxwell's P. & P., page 90, note. 1 Sutherland on Damages, 763. Adams v. Barry, 10 Gray, 361. M. F. Harrington, for defendant in error. 24 235 42 109 24 235 50 115 Everton v. Esgate. MAXWELL, J. This action was brought by the defendant in error against the plaintiff to recover damages for an alleged assault and battery. The answer is a general denial. On the trial of the cause the jury returned a verdict in favor of the defendant in error for $1,000, and judgment was entered on the verdict. The first objection is the misconduct of several jurors named. One Thomas Hudson makes oath that before one Jacob Ernst, one of the jurors, was called to sit in the case, he had a conversation with him, in which he talked over with him all the facts and circumstances connected with the case. Mr. Ernst has filed an affidavit denying that he had any conversation in regard to the case with Mr. Hudson or any one else before or during the trial. The examination of Mr. Ernst on his voir dire is not set out in the record. Hence there is nothing to show that the juror was interrogated upon this point. This is necessary where it is sought to show that the juror had formed or expressed an opinion before the trial. The object of the examination is to ascertain the condition of the juror's mind. Therefore, if a party waives his right to examine a person called as a juror, in whole or in part, he cannot thereafter insist upon causes of disqualification which by inquiry he could have discovered. The case would be very different if the proposed juror gave false answers to material questions. But for aught that appears in this record the juror may have informed the parties that he was favorable to one side or the other. Cases, no doubt, sometimes occur where it is known to one of the parties that a juror has formed or expressed an opinion in his favor; yet such party would not necessarily challenge the juror on that ground. The court below undoubtedly did right in disregarding the affidavit of Mr. Hudson. |