Page:Federal Reporter, 1st Series, Volume 7.djvu/490

 478 FBDEBAL EEPOBTEB. �waa optional with the workman, and that the defendant is not responsible for the choice the workman made. The evi- dence does not leave a foundation for this argument, even if it was Sound. The workman is the only witness, and he tes- tifies that the contraot for putting in the wells was in writing, which he could not read, but which the defendant read as a contraot for putting in driven wells. It is further argued that, as the evidence shows the contract was in writing, which is not produced, the paroi evidence is not admissible, and that there is no legal evidence as to what the contract was. This argument might be well founded if the suit were upon the contract, but it was not. The question is not what was the contract, but is, what did the defendant procure the work- man to do? What he told the workman to do, or pretended to read from the contract that the workman was to do, if acted upon, would be a sufi&cient procurement, even if con- trary to the contract. The testimony of the workman might be contradicted by the defendant if not true, and, not being contradicted or explained away in any manner, it satis- faetorily proves the affirmative of the issue made by the pleadings. �The defendant denies any profits, and insists that none are proved to lay the foundation of an accounting. None are proved beyond the presumption arising from the fact'of the putting the well down so that it could be used. This would raise a presumption that there were, or might have been, some profits, and the allegation that the transaction was not profit- able would not meet the presumption so as to defeat an accounting. The plaintiff would have the right to have the aocount taken, however it might resuit, left to him. Besides this, the act of 1870 (Eev. St. § 4921) provides for an account- ing for damages as well as profits, and there may b.e dam- ages to be accounted for in this case. �Let there be a decree for au injunction and an account accordingly. ��� �