Hastings, C.
Plaintiff filed petition in the district court for Lancaster county, alleging that the defendant is a corporation of the state of Missouri; that about June 1, 1902, defendant employed plaintiff to perform services in and about the conducting of business as paving contractors in the city of Lincoln, and agreed to pay for such services so contracted for 10 cents a square yard, amounting to $1,876; that plaintiff fully performed all of the services as by said contract he agreed to perform, and thereby defendant became indebted to him in the sum of $1,876, none of which has been paid. The defendant answered, saying that, still relying upon its objection to the jurisdiction for lack of legal service of summons, it admitted its incorporation in the state of Missouri, and denied plaintiff’s other allegations. A reply was filed asserting jurisdiction, and that such jurisdiction had been found by the trial court, and that its conclusion on that subject was final. Trial was had to a jury, and a verdict returned for the defendant. The plaintiff brings error, and complains of the fifth instruction given by the court, Avhich is as follows:
“The jury are instructed that, in order to establish the contract sued on, it is necessary for the plaintiff to show that the minds of the plaintiff and defendant, through its vice-president, Mr. R. \Y. Hpeir, met, and that the contracting parties mutually agreed to the terms of the contract substantially as set out in plaintiff’s petition. The fact, if you find such to be true, that plaintiff performed services for the defendant under some other contract, expressed or implied, with the defendant, Avould not be sufficient to establish plaintiff’s allegations in ibis case, nor should the proposition of compromise or settlement sliOAvn in eAddencc [515]*515be considered by you in determining what is due the plaintiff on the contract sued on, in the event that you find from the evidence and under these instructions that anything is due him.”
It is urged that this instruction unduly narrowed the Issues in the case and the application of the evidence. Of course, under the pleadings it was necessary for the plaintiff to establish his contract. This instruction told the jury that it was necessary for the establishment of that contract to prove that the minds of the plaintiff and defendant, through its vice-president, met, and that they mutually agreed to the terms of the contract substantially as set out in plaintiff’s petition. The jury were also told that the fact that plaintiff performed services under some other contract, expressed or implied, would not be sufficient to establish plaintiff’s allegations in this case. The two clauses taken together could have been interpreted to mean nothing else than that the only Avay by which plaintiff could establish his alleged contract with defendant, was by showing an express agreement on each side between the plaintiff and defendant’s vice-president, on the one part, to perform these services and, on the other,, to pay for them the stipulated price. Of course, if this was all the case which the plaintiff was tendering evidence to establish, the instruction would be correct. It is ordinarily necessary in order to establish a contract that the minds of the parties, meet. It is so in this case. There must have been an intention on the part, of each of them to contract; buff it is not necessary that they mutually agreed, at the only interview which ever took place between plaintiff and defendant’s vice-president, to the “terms of the contract substantially as set out in plaintiff’s petition.” It would be entirely sufficient to establish the contract set out in plaintiff’s petition, that a proposition to procure certain services from the plaintiff at the alleged rate, Avas made to the plaintiff by defendant’s vice-president at the interview, AA'hich took place in Sioux City, and that on his return [516]*516home and bis investigating tbe circumstances, the plaintiff engaged in the performance of the services and, with the defendant’s knowledge and without any withdraAval of the proposition, performed them. While it is necessary that the minds of the parties meet, it is not necessary that they meet at any specific time or place, and if by Avords or action, or by both, the plaintiff, Avithin a reasonable time and before it was AvithdraAvn, accepted a distinct proposition made at the date alleged in Sioux City, and performed the several things contemplated in that proposition, he would be entitled to claim the contract as of the date of the proposition. Plaintiff claims that such is the real state of affairs, AAdiich his evidence tends to establish, and that, consequently, the instruction confining him strictly to proof of mutual agreements entered into at the time of his interview Avith defendant’s vice-president in Sioux City, Avas erroneous and prejudicial.
An examination of the evidence, as well as the discussion of it in the briefs of the parties, seems to shoAv that, while there is really no claim that any agreement was reached in Sioux City, there is evidence tending to establish a proposition there made for such contract, and plaintiff’s subsequent acceptance by going ahead, Avith the defendant’s full knoAvledge and under frequent communication betAveen the parties, to perform services, AAdiich are claimed to have been such as the offer contemplated, and to have been so accepted by the defendant. To be sure, the making of the proposition even is denied by the defendant, and it is also denied that services of the plaintiff:, some of which are admitted to have been rendered, Avere in their nature and Aralue such as Avere contemplated in the conversation in Sioux City. But these are both questions for the jury, under the evidence as it stands in this case, and were not submitted to them.
It is urged in defense of this instruction, that it submits to the jury the only case presented by plaintiff’s pleadings. There seems no question but that the instruction requires an absolute mutual agreement, The petition merely [517]*517alleges a contract. There seems no reason to cite authorities to the proposition that the contract might be established by a proposition on the one side and action upon it by the other party with the proposer’s knowledge and consent. In Emery v. Cobbey, 27 Neb. 621, after an offer had been expressly refused by one of the parties, his subsequent acting under it, with knowledge of the other party, is held to establish a contract. There was in this case, to be sure, an effort to show services which were not referred to in definite terms in the proposition, even on plaintiff’s interpretation of his talk with defendant’s vice-president, and there was ground for a caution to the jury not to allow plaintiff to recover on this contract merely because he had rendered some service; but it is clear that the plaintiff was not seeking to support his case on the ground of mutual agreement to render services on his part and to be paid a certain price for them on defendant’s, but was basing it rather upon what was done by both parties in pursuance to an understanding had at Sioux City, and which seems to have been, on plaintiff's showing, indefinite as to everything except price. It seems clear that the trial court, in giving this instruction 5, unduly narrowed the issues to the plaintiff’s prejudice, and that error is not corrected by any other instruction given. Indeed, it could hardly be.
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Hastings, C.
Plaintiff filed petition in the district court for Lancaster county, alleging that the defendant is a corporation of the state of Missouri; that about June 1, 1902, defendant employed plaintiff to perform services in and about the conducting of business as paving contractors in the city of Lincoln, and agreed to pay for such services so contracted for 10 cents a square yard, amounting to $1,876; that plaintiff fully performed all of the services as by said contract he agreed to perform, and thereby defendant became indebted to him in the sum of $1,876, none of which has been paid. The defendant answered, saying that, still relying upon its objection to the jurisdiction for lack of legal service of summons, it admitted its incorporation in the state of Missouri, and denied plaintiff’s other allegations. A reply was filed asserting jurisdiction, and that such jurisdiction had been found by the trial court, and that its conclusion on that subject was final. Trial was had to a jury, and a verdict returned for the defendant. The plaintiff brings error, and complains of the fifth instruction given by the court, Avhich is as follows:
“The jury are instructed that, in order to establish the contract sued on, it is necessary for the plaintiff to show that the minds of the plaintiff and defendant, through its vice-president, Mr. R. \Y. Hpeir, met, and that the contracting parties mutually agreed to the terms of the contract substantially as set out in plaintiff’s petition. The fact, if you find such to be true, that plaintiff performed services for the defendant under some other contract, expressed or implied, with the defendant, Avould not be sufficient to establish plaintiff’s allegations in ibis case, nor should the proposition of compromise or settlement sliOAvn in eAddencc [515]*515be considered by you in determining what is due the plaintiff on the contract sued on, in the event that you find from the evidence and under these instructions that anything is due him.”
It is urged that this instruction unduly narrowed the Issues in the case and the application of the evidence. Of course, under the pleadings it was necessary for the plaintiff to establish his contract. This instruction told the jury that it was necessary for the establishment of that contract to prove that the minds of the plaintiff and defendant, through its vice-president, met, and that they mutually agreed to the terms of the contract substantially as set out in plaintiff’s petition. The jury were also told that the fact that plaintiff performed services under some other contract, expressed or implied, would not be sufficient to establish plaintiff’s allegations in this case. The two clauses taken together could have been interpreted to mean nothing else than that the only Avay by which plaintiff could establish his alleged contract with defendant, was by showing an express agreement on each side between the plaintiff and defendant’s vice-president, on the one part, to perform these services and, on the other,, to pay for them the stipulated price. Of course, if this was all the case which the plaintiff was tendering evidence to establish, the instruction would be correct. It is ordinarily necessary in order to establish a contract that the minds of the parties, meet. It is so in this case. There must have been an intention on the part, of each of them to contract; buff it is not necessary that they mutually agreed, at the only interview which ever took place between plaintiff and defendant’s vice-president, to the “terms of the contract substantially as set out in plaintiff’s petition.” It would be entirely sufficient to establish the contract set out in plaintiff’s petition, that a proposition to procure certain services from the plaintiff at the alleged rate, Avas made to the plaintiff by defendant’s vice-president at the interview, AA'hich took place in Sioux City, and that on his return [516]*516home and bis investigating tbe circumstances, the plaintiff engaged in the performance of the services and, with the defendant’s knowledge and without any withdraAval of the proposition, performed them. While it is necessary that the minds of the parties meet, it is not necessary that they meet at any specific time or place, and if by Avords or action, or by both, the plaintiff, Avithin a reasonable time and before it was AvithdraAvn, accepted a distinct proposition made at the date alleged in Sioux City, and performed the several things contemplated in that proposition, he would be entitled to claim the contract as of the date of the proposition. Plaintiff claims that such is the real state of affairs, AAdiich his evidence tends to establish, and that, consequently, the instruction confining him strictly to proof of mutual agreements entered into at the time of his interview Avith defendant’s vice-president in Sioux City, Avas erroneous and prejudicial.
An examination of the evidence, as well as the discussion of it in the briefs of the parties, seems to shoAv that, while there is really no claim that any agreement was reached in Sioux City, there is evidence tending to establish a proposition there made for such contract, and plaintiff’s subsequent acceptance by going ahead, Avith the defendant’s full knoAvledge and under frequent communication betAveen the parties, to perform services, AAdiich are claimed to have been such as the offer contemplated, and to have been so accepted by the defendant. To be sure, the making of the proposition even is denied by the defendant, and it is also denied that services of the plaintiff:, some of which are admitted to have been rendered, Avere in their nature and Aralue such as Avere contemplated in the conversation in Sioux City. But these are both questions for the jury, under the evidence as it stands in this case, and were not submitted to them.
It is urged in defense of this instruction, that it submits to the jury the only case presented by plaintiff’s pleadings. There seems no question but that the instruction requires an absolute mutual agreement, The petition merely [517]*517alleges a contract. There seems no reason to cite authorities to the proposition that the contract might be established by a proposition on the one side and action upon it by the other party with the proposer’s knowledge and consent. In Emery v. Cobbey, 27 Neb. 621, after an offer had been expressly refused by one of the parties, his subsequent acting under it, with knowledge of the other party, is held to establish a contract. There was in this case, to be sure, an effort to show services which were not referred to in definite terms in the proposition, even on plaintiff’s interpretation of his talk with defendant’s vice-president, and there was ground for a caution to the jury not to allow plaintiff to recover on this contract merely because he had rendered some service; but it is clear that the plaintiff was not seeking to support his case on the ground of mutual agreement to render services on his part and to be paid a certain price for them on defendant’s, but was basing it rather upon what was done by both parties in pursuance to an understanding had at Sioux City, and which seems to have been, on plaintiff's showing, indefinite as to everything except price. It seems clear that the trial court, in giving this instruction 5, unduly narrowed the issues to the plaintiff’s prejudice, and that error is not corrected by any other instruction given. Indeed, it could hardly be. It is expressed in too stringent terms, and would be merely contrary to, and contradictory of, an instruction which would have permitted the establishment of the contract by the subsequent acts of the parties after the proposition, if one were made at Sioux City.
The complaint of errors in the refusal of instructions seems hardly well taken. Both of the instructions refused seem to be open to the criticism that there is no restriction of the services under consideration to such as the jury should find had been contemplated in the talk at Sioux City. Of course, other and different services from those contemplated in the proposition would be immaterial for the purpose of showing an acceptance or of entitling plaintiff to compensation under it.
[518]*518It seems hardly necessary to discuss the complaints as to the admission and rejection of evidence. For the most part they seem to be based upon the view which the court took of the necessity, under the pleadings, to establish an express agreement at Sioux City between the parties.
At the argument the only complaint which was dwelt upon was the alleged violation of section 339 of the code, in refusing to permit R. W. Speir to answer question 810 in the bill of exceptions, and in rejecting the tender of proof made in support of it. The question was as follows: “Yon may state all that was said by Mr. Pettis at that meeting, as near as you are able, beginning at the beginning, touching and concerning the matter .in dispute.” The Avitness had stated that in a conversation held by him in New York, after these alleged services, with plaintiff, the latter had stated that he kneAV there was no contract. Plaintiff had testified previously that- the entire NeAv York conversation was an attempt to settle. It is noAV claimed that there was a right to go into the AArhole conversation and the cross-examining question calls for it. The question, hoAvever, seems too broad. All the conversation on “the same subject,” that is,the fact of whether'there. was a contract or not, was what plaintiff was entitled to call for; not all the conversation as to plaintiff’s claim. Anything in the conversation necessary to‘make this statement as to the contract understood was admissible, or that related distinctly to that contract. The talk simply in regard to a settlement was not needed for this purpose, and was rightly rejected. Only so much of the conversation as related to the subject of the existence of a contract was in question. The question was much broader than that.
For the error in unduly restricting plaintiff’s right of recovery to one on an express agreement on each side, made in a conference of the parties, it is recommended that the judgment of the district court be reversed and the cause remanded for further proceedings according to law.
Ames and Oldham, CC., concur.
Costs: Bux ott Exceptions. The necessary expense of settling a hill of exceptions upon the determination of a cause in the district court is taxable as costs incurred in that court to be .adjudged against the unsuccessful party in the final determination of the litigation.
By the Court: For tlie reasons stated in the foregoing opinion, the -judgment of the district court is reversed and the cause remanded for further proceedings according to law.
REVERSED.