delivered the opinion of the court.
The assignments of error by appellants, question the rulings of the court in admitting improper evidence to go to the jury on behalf of appellee, against appellants’ objection, to which rulings appellants excepted.
They also question the rulings of the court in refusing to admit proper evidence offered by appellee, to which rulings appellants duly excepted.
The assignments of error also cover and embrace errors in refusing to give to the jury proper instructions offered by appellants and in giving improper instructions at the request of appellee, to which rulings appellants duly excepted.
The assignments also include other matters that it will not be necessary to notice, except indirectly.
As to the rulings of the court in admitting evidence to go to the jury on behalf of appellee concerning the classification of the material excavated, and as to the estimate of the amounts thereof, etc., the least that can be said in extenuation of the numerous erroneous rulings of the court in admitting it, is, that the court proceeded in the trial of the case upon an incorrect view of the law governing the matter, and seems to have entirely ignored one, at least, of the provisions of the contract between the parties, which it is evident was placed therein for the purpose of avoiding the pitfall into which the trial court has fallen.
*528Nearly all of the testimony introduced by appellee was for the purpose of classifying the material excavated, and estimating the amount thereof, and this testimony came from persons, including appellee himself, who did not, and frankly admitted, could not, establish by their- own evidence, their qualification to classify the material or correctly estimate • the amount excavated, as well and as correctly as the chief engineer of the road, who was selected by the parties in their contract, to make the classification and estimate.
There is no evidence in the record that the chief engineer of the railroad was guilty of any fraud or made any mistake in his classifications and estimates.
To give the numerous questions propounded to the several witnesses and their answers thereto, in detail, would extend this opinion to an immoderate length to no useful purpose.
All of the testimony of appellee’s witnesses wherein they have testified as to the classification of the work done, and as to the estimate of the amount appellee was entitled to be paid for the work he did, was improper, and should not have been permitted to go to the jury for their consideration, and the court erred in admitting it, for the reason that the parties themselves had provided in their contract, which they had a right to make, a mode of finally determining all such matters and which excluded all other modes, and the person agreed upon as umpire ivas not dead nor had he refused to act.
Witnesses should not have been asked to testify what the contract contained, since the contract spoke for itself, and was in evidence; and while it is not easy to see how such testimony could have done harm before an intelligent jury, yet juries are not always so intelligent as to be able to distinguish between legal and illegal testimony; if they were, there would be little need of a judge to preside at a jury trial.
As to the so-called judgment of Shadden against appellants for $26.15, including costs, it does not appear that appellee had any notice from appellants of the.pendency of *529the suit for the recovery of damages caused by appellee’s employes, and while the contract provides that appellee shall pay such claims, it does not provide that appellants shall not be required to give notice to appellee of such claims and the pendency of suits against appellants for the recovery of such damages; and while it is claimed by appellants that they proved appellee’s servants did the damage sued for, appellee denies, not only that his employes committed the damage, but claims it was done by Shadden’s employes or relatives, and the fact could have been easily proven on the trial before the justice of the peace, who rendered the claimed judgment. The matter of damages, then, can not be said to be res adjudicate,, as claimed by counsel for appellants, and the judgment (if it was one, which we do not determine) was properly excluded from the jury.
As to the item in appellants’ account of $375 claimed by appellants to be for work done by them to finish the road for' the track-layers and which appellants claim was covered by their contract with appellee, and was included in the chief engineer’s estimate of the amount and value of work done by appellee, we do not understand that appellee denies appellants did the work, but insists it was extra work, not covered by appellee’s contract, and, as we understand the matter, appellee’s counsel denies that the chief engineer’s estimate of labor done by appellee includes the $375. As the judgment will have to be reversed for the errors already indicated, we do not now determine which of the parties is right, but leave them in a condition to take further evidence if desired.
The debtor account of appellee to appellants of $9,528.01, less the $375 and the $26.15, is made up of a large number of items, including pay-rolls, orders, goods sold, etc., many of which were admitted in evidence by the court, and many were excluded from the jury, and exceptions were taken to the rulings of the court in excluding them, and the rulings in a body, are assigned for error in this court. We shall not undertake to go through the hundreds of items of *530charges on appellants’ books and try to select those, the correctness of which are proven or admitted, from those held not properly proven, and the correctness of which was denied by appellee. The statement of counsel for appellants “that appellants have established by the greater weight of the evidence (not objected to), that they had paid out on account of and furnished to defendant $9,528.01,” can hardly be correct, since that sum includes the total sutn of every item of appellants’ account, including those excluded from the jury, and for which exclusion appellants are now complaining.
In the opinion of the writer hereof, this case should be sent to a referee or to referees, to take the evidence and report it to the court, with conclusions of law and fact therein, as provided by chapter 117 of Hurd’s Revised Statutes.
We do not deem the record in such a condition as to make it advisable that the instructions should be passed upon or the evidence further commented upon at this time.
For the errors indicated the judgment of the Circuit Court is reversed and the cause- remanded for further proceedings in conformity with the views herein expressed. •
Reversed and remanded.