Lassing v. Paige

Sharpstein, J.: The plaintiff and defendant entered into an agreement in writing, by which the former agreed to plow for the latter, in a specified manner and within a specified time, two sections of land, for $2 per acre, which the defendant agreed to pay on the completion of all of said plowing, according to the conditions of said contract.

The plaintiff alleges that he plowed seven hundred and fifty-three acres for the defendant. As the plaintiff did not complete the plowing according to the written contract, he does not seek in this action to recover upon it; but claims that it was altered by a subsequent oral contract. If altered, as he claims it was, the [140]effect of such oral alteration was the making of a new contract, which in law was altogether oral. And that is the theory which the plaintiff seeks to maintain. Whether he has succeeded or not in establishing that theory, depends upon the construction which should be given to the evidence in the case. Upon the trial, he testified as follows: “About the middle of March, Mr. Paige (defendant) came on the plowing. He was in a buggy, and I.was in a spring wagon. We were driving along, and he was finding fault with the plowing. Pie said it was not deep enough ; and so I got out of the spring wagon. I carried a rule. I measured the plowing, and it was five and a half inches deep. I said to Mr. Paige, I had borrowed some money to pay the men off from Mr. Newman of Hill’s Ferry, and I would have to have some money. Can you let me have $300? Mr. Paige says, I- don’t owe you anything until the plowing is done ; but he says, I will loan you $300. I loan you the money at 1 per cent, interest. I said, Mr. Paige, in case it should not rain any more in a week or two, will I lose it all ? He said, I don’t owe you anything. We went down farther, and then I asked him again in regard to the money; and then I told him, in case it should not rain any more, will I lose all the plowing I have done ? I told Mr. Paige, in case I could not do the work, he had better get some one else. He said, go ahead and do the best you can. I will pay you for what you plow, and I will send you a check for $300. As he drove off, I told him Mr. Underwood should come up and inspect the ground once or twice a week, and if I could not do the work satisfactory to him, I would take my teams home, and quit.

“ Q. That was the last talk you had with Mr. Paige ; he told you he would pay you, to go ahead and do the best you could ?

“A. Yes, sir. When Mr. Paige drove off. I have not seen him for about two weeks after that. That was the last conversation I had with him in regard to this work at that time. Mr. Underwood gave me this check some three or five days after this conversation.