The opinion
Smith, Justice, delivered the opinion of the Court:
The points to be decided in this case, arise on the rejection of evidence offered by the plaintiff on the trial.
It is manifest that the questions put by the plaintiff’s counsel to the witnesses, which were overruled by the Court, were relevant and pertinent to the issue in the cause, and should have been permitted to be answered by the witnesses. Some of the evidence, also rejected, such as the report of the Board of Canal Commissioners, should have been received under the agreement of the respective counsel recited in the record. The authenticity of the report, and its accuracy, was precluded from being shown, by the refusal to permit the answers to the questions propounded. The declaration sets out the contract by the insertion of a copy in the declaration.
The power of the Commissioners to make the contract is not questioned, and from the pleadings could not arise on the trial. The plaintiff was surely at liberty to prove the point in issue, viz : whether the contract was made as charged in his declaration, and had been complied with by him, and should have been permitted to establish by proof, its execution by the parties. Whether, when the proof had been all given, the contract was proven, was for the jury, under the direction of the Court, to determine.
We think there is error in the refusal to admit the plaintiff’s evidence, and therefore reverse the judgment with costs, and remand the cause with instructions to award a venire facias, de novo.
Judgment reversed.