We think the evidence in this case can leave but little, if any doubt, that Hunt was the real contractor for the work for which he has recovered this judgment. Leaving out of view the testimony of Olmstead, the architect, which is contradicted by Drake, and his veracity shaken by a large number of witnesses; and taking into consideration the fact that the appellant saw Hunt nearly every day at work at plumbing, inspected the work, and that Christopher worked in copper, and was not a plumber, and had the copper work to execute, we can arrive at no other conclusion than that Hunt was the contractor for the plumbing work.
The appellant insists that Hunt, by his own act, has barred himself from any such pretension. He insists that by a certain order, drawn by Olmstead on the appellant, in favor of Christopher, accepted and paid by the appellant, after he had refused to accept one drawn directly in favor of Hunt, is an estoppel upon Hunt, and that he cannot be now heard to say that the contract for doing the work was made with him.
The facts on this point are about these: The architect used printed forms of checks or orders, in which the contractor was described as plumber. On the 13th of December, 1854, the architect had filled up one of these certificates or orders, for four hundred dollars, payable to B. Hunt, the appellee, “ for *549plumb work,” on “ Young America,” as per contract, payable at sight, at Chicago, which the appellant refused to pay, and it was returned to the architect, who said Cook was “ notional,” and that he would make it all right. Accordingly, he filled up another certificate, on the 23rd of the same month, to Christopher, as “ plumber,” which, being indorsed by Christopher to Drake, who was Hunt’s foreman on the work, was paid by appellant. The architect swears that the plumbing work was let to Christopher, by a written contract, and that Hunt and Drake knew it, and took the job from Christopher ; that they were sub-contractors under him.
This is hardly reconcileable with the architect’s own act, for he made the first certificate, dated 13th December, in the name of E. Hunt, “ for plumb work,” and when it was returned unpaid, the only explanation he gives of Cook’s refusal to pay, was, that he was “ notional,” not that Christopher was, and Hunt was not, the contractor for the work.
Drake, the foreman, swears, that no such reason was assigned by either Cook or the architect, for the refusal to pay the certificate. He swears positively, that the contract had been let to Hunt, and that neither he nor Hunt knew, or ever heard, of any contract with Christopher, and that Hunt was not a subcontractor. This flat contradiction, by Drake, of the architect, Olmstead, coupled with the fact that his character for veracity was seriously impaired, to say the least, destroys any pretense of an estoppel in pais, by any act done by Hunt. The whole transaction seems like a plan to get some act of Hunt, by which the parties concerned might insist upon an estoppel, but it is easy to understand that Hunt, wholly unsuspicious of any such purpose, was willing to get his money through an order drawn in favor of any one, without scrutinizing the forms of the papers by means of which he was to get it.
Olmstead was the architect of this building, and the agent of appellant in its construction. His declarations and statements, therefore, as to all matters within the scope of his duties, were properly admissible in evidence. It was on his certificate, all payments were to be made. He received the bids for the work, and let a portion • of it, and we recognize all declarations or statements of his, which the court suffered to go to the jury, as springing from the relation in which he stood to these parties.
By the testimony of Olmstead it would seem that the contract made with Christopher for the plumbing, was in writing. Its contents could not be proved, until its absence or loss had been fully and satisfactorily accounted for, which was not done in this case. The paper is traced to a safe in the keeping of a Mr. *550King, but Mr. King is not produced and examined to give his knowledge of it.
The rule is well settled, that when a paper has a particular place of deposit, or when it is known to have been in a particular place, or in the hands of a particular person, then that place must be searched by the party setting up the loss, or the person produced or accounted for into whose hands or keeping it has been traced. Doyle v. Wiley, 15 Ill. R. 576 ; Rankin v. Crow, 19 ib. 626.
The statements made by Olmstead to his partner, Van Osdell, about Cook’s paying him for his services—in fact, all his statements — were proper for the purpose avowed by the appellee’s counsel, that is, to lay the foundation to impeach the witness. It is not only proper, but it is necessary for such purpose.
We cannot conceive that any payments made to Christopher, could affect Hunt, as their contracts were separate and distinct, and for different work. No inference could be drawn by the jury from the fact that he had paid Christopher, that, therefore, he had paid Hunt. Wilder’s testimony was proper, as tending to fortify Drake’s statement through admissions of the agent, Olmstead.
When a witness is impeached, and witnesses are called to sustain him, they are bound to swear that they know the general character of the impeached witness, for truth and veracity. If they cannot so swear, they cannot be heard on that point.
The instructions given by the court are all proper in a case of implied assumpsit, and though there may be some verbal inaccuracies, they substantially, taken together, declare the law.
As to those which the court neglected to mark as given or refused, as the statute requires, we have to say, this statute is directory to the court, and should be obeyed; but if, in the hurry of business, it should not be, a party who is not in fault should not be prejudiced by it, if the record shows what was done with the instructions. If the law is correctly laid down in them, we do not think a court would be justified in reversing a judgment, because they were not marked “ given.”
The refusal to give the appellant’s instructions, as moved by him, without the qualifications made by the court, was proper, inasmuch as without the qualifications, they were calculated to mislead the jury and work injustice.
We see no error in the record to justify a reversal of the judgment, and ordering a new trial. It appears to us justice has been done in the premises, and we must affirm the judgment.
Judgment affirmed.