EVIDENCE.

[Hamilton Circuit Court,

November Term, 1897.]

. Cox, Smith and Swing, JJ.

#### Cincinnati (City) v. Maggie Egan.

Error to Excdode Evidence Tending to Support one oe the Issues in a Case.

In an action against a city, for damages for a change of grade and the erection of a retaining wall, supporting the elevation of the street, where the city denies having built or authorized the building of the wall, and claims that it was built by the contractor under a private arrangement with the owner of the property, it is error for the court to refuse testimony of competent witnesses, tending to show that no authority or direction had been given by the city engineer to the contractor to construct the wall; that no estimate for work done on the wall was made and that the contractor, or his assignee, never received any pay from the city for such wall.

Error to the Court of Common Pleas of Hamilton county.

Smith. J.

The judgment sought to be reversed in this case was rendered in an action brought by Maggie Egan against the city to recover damages. Her petition contained three separate causes of action. In the first she sought to recover $2000 damages for an alleged injury by the city to her lot and the improvements thereon, abutting on a street, which she claims was, without warrant of law, filled to a great height in front of her property. In the second she sought to recover $700 damages, averring that to maintain and support the fill made on said street in front of her premises, the city built a high retaining wall along the same, shutting in her *305dwelling house, cutting off her access thereto, and depriving her of the necessary light and air from her premises, and built it so carelessly and negligently, that it afterwards cracked and allowed water and sewage to pass through the same and onto the foundation of her house, undermining the same, and greatly injuring it. In the third cause of action it is averred that in the construction of said wall, the city appropriated therefor a strip of her ground four feet wide and thirty-eight feet long, and that the same is used by it as a necessary part of the street, and she has thereby been deprived of her property rights therein to her damage $800. The answer of the defendant, in substance, is a general denial of the averments of the petition, and sets up facts which it is claimed show that the improvement was legal and valid, and that for several reasons the plaintiff was not entitled to recover any damages. As a further answer to the second and third causes of action, it says that the retaining wall in question was placed there by the delendant or her agents. This is denied by plaintiff’s reply.

At the trial of the case in the court of common pleas the evidence tended to prove that the city had contracted with a Mr. Neidemeyer to construct this improvement of the street in front of and on either side of plaintiff’s premises. That it was a general contract to do work, such us filling and excavation, at certain prices per yard I believe, and so much for masonry per perch. There was no stipulation in the contract as to this wall. The city offered evidence tending to prove that it was in fact built under a contract between Patrick Egan, the father of the plaintiff, and Mr. Neidmeyer, the contractor, who had made the other improvement for the city. The evidence as to this was, that Egan asked Neidemeyer if he had made up his mind how much he was going to charge for doing it. That he answered, yes — $3 per perch, provided he would allow him to use old perch (stone?) in the wall which then stood there— And to this Egan replied, “All right, go ahead and build it.”

In addition to this the city sought to prove by W. H. Bosh or E- F. Bosh, who were assistant city engineers, and one of them the officer in charge of this improvement, that no authority or direction had been given by the engineer in charge, to the contractor, to construct this retaining wall,and that in computing the estimate of the amount due from him to the city for work done on the street improvement, no estimate for the work done on this wall by him was made, and that the contractor, or his assignees, never received any pay from the city for such wall. The court refused to allow this evidence to be given, and the city duly accepted.

In this action we are of the opinion that the court erred to the prejudice of the defendant. The claim of the city was that it had never authorized this wall to be built by Neidemeyer, and had nothing to do with it, but that it was done by some one else; and there was evidence tending to show that it was done under an arrangement between Egan and the contractor. But why was it not competent for the city further to prove that it did not authorize Neidemeyer to do so, and that the cost of the wall was not included in the estimate of the amount payable to him under his contract with the city, and that he never was paid anything for this wall by the city ? We see no good reason for its exclusion. The question whether it had been built by the city was one of the issues in the case, and any evidence fairly tending to prove that the city had not built the wall, was competent and relevant, and we think the evidence rejected was of that character.

*306The verdict of the jury was a general one in favor of the plaintiff for the sum of $-. This, or a part of it, may have been on account of the claim made in the second and third causes of action — and as the amount found due on each cause of action cannot be ascertained, it follows that the judgment must be reversed.

We see no other error in the case.