This is an appeal by the plaintiff from a judgment on a directed verdict in favor of the defendant.

*124It is alleged in • the complaint, in substance, that the plaintiff is a 'banking corporation under the laws of the United States, and that the 'defendant is a corporation organized under the laws of this state; that in'the year 1907 the plaintiff 'bank contracted for the construction of a building upon lots owned by it in the city of Aberdeen, and that the basement of this building was designed and arranged for a barber shop and Turkish bath parlors under a long-time lease; that as part of the contract of lease plaintiff was required to furnish in the lessee an artesian well flowing “clear soft water”; that in order to carry out this contract the plaintiff entered into a contract with the defendant to construct such an artesian well for the sum of $350, on condition that the defendant was construct the well in a good and workmanlike manner, and would keep said well down to a clear soft -water flow; that the defendant did- drill a well in pursuance of said contract, and' the plaintiff did pay for same the sum of $350, but that the well failed to give a soft water flow; and that it was constructed in an unworkmanlike manner, which caused it to break out from the pipes and flood the basement of plaintiff’s building. By reason of the failure to secure soft water, and -by reason; of the loss of rental of the basement, and of repairs made necessary by the flooding of said basement, the plaintiff claimed to be damaged to the amount of $881.24, and demanded judgment for that sum.

The answer of the defendant was a general denial. On the trial the defendant introduced, over the objections of the plaintiff, as part of its cross-examination of the plaintiff’s witness Gannon, a contract between the defendant and the witness. The parts of this contract material to this opinion are as- follows: “This agreement, made and entered into this 10th day of January, A. D. 1907, by and between the Aberdeen Artesian Well Company, a corporation of the 'state of South Dakota, located at Aberdeen, South Dakota, party of the first part, and F. B. Gannon, Aberdeen P. ()., So. Dakota, party of the second part, witnesseth: That the said party of the first part agreed and contracts with the said party of the second part'as follows: * * * (Signed) The Aberdeen Artesian Well Company, Party of the First Part, per Ohas. L. Nicholson. F. B. Gannon, Party of the Second Part.”

The name of the plaintiff does not appear in any part of the written contract. On the cross-examination o'f Gannon as a wit*125ness for the -plaintiff, 'he was shown the written contract, and he admitted -his signature to the same. The written contract, executed by Gannon with the defendant, was objected to, on the ground that it was irrelevant and immaterial, not proper cross-examniati-ou, not between the parties to the action, and not within the issues.

[1] We are of the opinion that the evidence as to the written contract between Gannon and the defendant should have been excluded, for the reason that the contract did not purport to be between the parties to the action, and was not within the issues tendered by the pleadings.

[2] It -will be observed that it is alleged in the complaint that the plaintiff and defendant entered into* a contract, by the terms of which the defendant was to drill a well for the plaintiff to a depth sufficient to supply soft water, and that -the work should be done in a good and workmanlike manner, and that by reason of the breach of the contract the plaintiff suffered -damage, for which he claimed to recover judgment in the action. The only issue, therefore, tendered by -the defendant by its general denial was the making of suoli a contract and the 'breach of the same, and the damages sustained by the plaintiff by reason of s-aid breach of the contract. The plaintiff having introduced evidence clearly sustaining the allegations of the complaint, in- the absence of evidence on the part of the defendant controverting the evidence of the plaintiff, the plaintiff was entitled to a verdict in its favor, under the issues tendered.

It will be observed that the defendant failed to set up any modification of the oral contract, or that the same was merged into a. written contract entered into between Gannon, acting for the plaintiff, and the defendant. The objections, therefore, of -the plaintiff to the introduction of the written contract should have been -sustained by the court. Counsel for -the defendant very frankly states in his brief that Gannon was undoubtedly surprised by the presentation of the written contract to him -on cross-examination; and we are of the opinion that the plaintiff was equally surprised by the presentation of this written contract to Gannon, for t-he purpose of showing that the oral contract between the plaintiff and the defendant was merged in a -written contract entered into between the defendant and Gannon, who was not a party -to the action, in view of the fact that the defendant’s answer con*126tained only a general denial of the plaintiff’s cause of action. The plaintiff having proved the oral contract between it and the defendant, and no evidence having been offered on the part of the defendant controverting the making of the oral contract, the plaintiff was entitled to recover; and the court was clearly in error in directing a verdict in favor of the defendant.

Even assuming that the written contract between Gannon and The defendant was properly admitted in evidence, it was for the jury -to sáy by their verdict whether or not the well was sunk by the defendant under the oral contract, or under the Written contract; and hence, in any view of the case, the court was not justified in directing a verdict in favor of the defendant.

It clearly appeared from the evidence that the oral contract between the plaintiff and the defendant was made a week or more prior to the execution of the written contract between Gannon and the defendant. The question, therefore, as to whether the oral contract was merged in the written contract between Gannon, not a party to the action, and the defendant could only be properly shown under proper -pleadings on the part of the defendant, and could not properly be shown by the defendant under a mere general denial.

For -the error, therefore, in admitting the written contract between Gannon and the defendant, over the objections of the plaintiff, and in directing a verdict in favor -of the defendant, the judgment of the circuit court is reversed.

(concurring specially). The plaintiff’s witness Gannon testified that the well was constructed under an oral contract entered into between himself, as president, acting for the plaintiff bank, and the defendant. The general denial in the answer raised an issue, not only as to the existence' of the oral contract testified to by the witness, but also as to whether the well was constructed under the oral contract. The witness also testified that the oral -contract was made with the bank; he acting as its president.' The general denial raised an issue whether the witness was acting in behalf of the bank or otherwise. It seems clear tome that upon eách of these issues the written contract is relevant and material as a part of the cross-examination of Gannon, and fhat the court committed no error iri receiving it in evidence. If it had been conceded that the well was -constructed' under the oral *127contract with the bank, or that it was constructed under the written contract with Gannon as an individual, there would have been no issue for the jury. But, neither of these -propositions being conceded, the question as to what the fact was should have been submitted to the jury. When the court, by directing a verdict, took these issues from the jury, it committeed an error for which there should be a reversal. The question whether the alleged oral contract was later merged into a written contract goes to the very existence of the contract sued upon, and requires' no pleading beyond the general denial in the answer. I concur in the conclusion reached by the majority of the court.