Holm v. Shay

Holm and Shay agreed that the former should dig a well for the latter at an agreed price, payable only in case a serviceable well was obtained. The plaintiff affirms, and the defendant denies, performance. The judgment should be reversed for two errors : (1) The admission of letters from plaintiff to defendant asserting the completion of the work and asking payment; (2) admission of previous unsuccessful attempts to drive wells for the defendant. The plaintiff cannot read or write. The letters were written by his daughter and copied into a book, and the letter and copy read to him. He identified the copies and they were received in evidence. This was not technically correct, but in any case the letters were mere self-serving declarations and not admissible. The plaintiff ostensibly tendered them to show an unnecessary demand. The letters were *177not answered, and, as defendant testified, not received. A proper-understanding of the agreement did not require plaintiff to narrate his earlier exploits in sinking for water without success, his losses thereby and the expression of sorrow therefor by defendant. It tended to excite an interest on the part of the jury to which he was not entitled, and should be omitted. In view of a new trial it is not necessary to consider whether the facts sustain the finding of the jury.

The judgment and order should be reversed and a new trial granted, costs to abide the event.

Woodward, Jenks, Burr and Carr, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide the event.