Page:Dakota Territory Reports.djvu/27

 plaintiff seventy- eight dollars and fifty cents, provided the plaintiff should complete and finish np defendant's house, which was then in an unfinished condition, which he never did do. He also claimed a set off, and a large balance due him.

The plaintiff in reply denied all which.

During the time that a portion of the accounts of the plaintiff below was accruing against the defendant, he was Provost Marshal in this Territory, and in their business matters in controversy in this action, was a certain special contract, about which there was testimony, pro and con, which tended to prove, that if the defendant would appoint the plaintiff his clerk, he might charge him, in their deal, a certain sum of money, which was agreed upon between the parties, which he did charge.

A trial by jury was had in Clay county, First Judicial District, June term, 1867,, J., presiding.

The defendant below moved the court to dismiss the action for want of jurisdiction in the court to try the same, because the court in the Second Judicial District had no right by law or otherwise to send the case to Clay county, and that it should have been sent to Bon Homme county; the court house in the latter being nearer the one in Yankton, than is the court house in the former county.

The court pro forma overruled the motion to dismiss. To which decision, the defendant excepted.

Testimony was introduced, a part of which is hereinbefore detailed, when the court, among other things not excepted to, charged the jury, upon the requests of the plaintiff, as follows:

1. If the jury find from the evidence that a contract was entered into between the parties, which was made while the parties were under a mutual mistake as to material facts affecting its subject matter, the plaintiff understanding that he was to do chores and furnish cows for his board and washing, and the defendant understanding that he was to do carpenter work in addition, then the contract is invalid and may be avoided by either party in a court of law, and plaintiff may recover the value of his labor.