, 1891-11-05


the measurements could be taken from
4 the plans and specifications the court is
not called to pass upon. But it is an issue
raised by the pleading, and the plaintiffs
had a right to enlighten the jury upon that
| subject; for if such was the fact, and the
further factappeared that the building was
| not sufficiently advanced to permit the
/ measurement in time for the plaintiff to
complete his work within the prescribed
time, then it is brought within the general
rule that he who by his negligence prevents
thing from beng done shall not avail
hlmseH OF the performance he has
occasioned.
An investigation Of the testimony III
this case also goes to show that it was the
understanding between the contracting
| parties that actual measurements were to
| be taken This we gather from the testi-
| mony Of the defendant himself. Among
other things, on page 38 of the record, he
says:
sldered very good figures for the work, and
said to him, Mr.. Carter, that is a big ad-
vantage in dealing with you, because
have had some trouble about misfits when
you deal by correspondence and get your
work by plans. 1t has caused me great
deal Of annoyance at my house and the
parties were not there to get the actual
measurements, and prefer to give you the
contract because you are here, and a man
| OF that sort can figure and make his calcu-
lations.'''
So that by his own statement it appears
that the measurement was not to be made
by the plans and specifcatio and that
MS principal lnducement in entering into
the contract with the plaintiffs was that
the work could be done by actual measure
ment. Under all the circumstances Of the
case we do not think any principle of the
law would have been violated by the ad-
mission Of the testimony proffered.
Plalntltts also complain of certain i'm
structions given to the jury by the court, as
being in violation Of Sec. 16, Art. Nv of the
constitution of Washington Said article
provides as follows: "Judges shall not
charge juries with respect to matters of
fact, nor comment thereon, but shall de-
clare the law" 1t seems to us the trainers
ot the constitution could not have more ex-
pllcltly stated their determination to pre-
vent the Judge from influencing the iudg-
ment OF the jury on what the
testimony proved or failed to prove. tbs
more restrive than the constitutional pro-
visions Of any other state. The California
constitution provides that the Judge may
state the testimony, but our constitution
evidently intends that the Judge shall
make no reference to the testimony for the
purpose OF informing the jury what it
proves or does not prove, but shall content
himself with declaring the law, for after
the inhibition i'll regard to his commenting
occurs rbnt shall declo Ta III IN !, Tbia
need not hamper the iTdoe nor ~ en, lls
Kim ivig te i,r,J ta - tsas I
to case. He may state to the jury, ''if
State IF facts exists tha law + a. y9o fiio ItiU z 4
etc, or s.if YOU find tbat such q state If
facts is concusivelv nroyep tha lo% U'VG 2 ~ ~
foIlows.n etc. etc Rut fo tell fba T. i1,t,1 ,S9
there is no dispufe in tbe testin,omv ~ ~
certain point Or that M apTfbing 1gIiy Y ~ cnn .
clusivelv proven Is @nino foo far ~ % UGi
might think from tRe testimanv nv that u pse wee
conclusiyely proven and He irv nni@%f "i,
come to a different concl,1sinn or {bn 81 W.
might conclude thare Vas soroa 4 diSrT S,1u
the testimony. n is the eyciusiva nv 1SroH- w.
ince Of the inry To- determine rom PI tba
evidence what fact is proven concInsive- We
", or otherwise, ana to anaiyze The
testimony. and determine for then9seIvps
whether there is anv dispnte in rala7 a.
ton to all or any If the facts concarn-