The opinion of the court was delivered by
Brewer, J.:
1 petition in error; when dismissal no bar. This case has been Here before, .having been brought then upon an attempted “case-made.” The case-made having been improperly signed and allowed, the petition in error was dismissed. (18 Kas. 425.) , Counsel for plaintiff in error had however, fortunately for bis client, preserved some of the errors complained of in two bills of exceptions, which were as appears by the journal entry duly allowed, signed and ordered made a part of the record. The dismissal of one petition in error, on the ground that the record attached to it is illegal and insufficient, is no bar to a subsequent action based upon a legal and sufficient record. There has been no adjudication upon the merits, no inquiry into the alleged errors. The record has not heretofore been so presented that we could examine it.
2 Juror incompetent on second trial. Many matters are presented by counsel for plaintiff in error, only two of which however we shall notice. And the first is as to the competency of certain jurors. The case was called for trial on the 17th of December, a jury was impanneled, the plaintiff offered his testimony and rested, and the defendant offered testimony to which plaintiff objected. The objection was sustained, and there-J J , * upon defendant obtained leave to amend his bill of particulars by verification. Upon this plaintiff applied for a postponement. The application was sustained, the jury discharged, and the trial postponed to the 28th of December. On the 28th, the case was again called for trial, and, several of the jurors who served on the trial upon the 17th, were placed in the jury box. The defendant duly objected to them on the ground that they had served as jurors upon a former trial, but the court overruled the challenge, and they were sworn and served as'jurors a second time. In this was error. It is good ground of challenge by the statute, that [63]*63one “has formerly been a juror in the same cause.” (Gen. Stat., p. 680, § 270.) And to bring one within this ground of challenge, it is not essential that the case shall have been at such former time fully tried and a verdict returned, or the jury discharged because unable to agree. It is enough if the case has been partially tried, and a portion of the testimony received. The idea is, that a juror having once served will have opinions more or less strongly settled from the testimony he has heard, and of- course he will have such opinions whether he has heard much or little testimony. Indeed, it would seem as though there were greater danger of injustice from a juror who has heretofore heard only one-side of the case than from one who has heard both. But the statute authorizes no inquiry as to the extent of the influence already exerted, or the strength of the opinions already formed by the testimony. It is enough, that serving as a juror on a former trial, he has heard the testimony then offered. It deems it safer to disqualify all such jurors. Counsel say in the brief that nothing was given in evidence on the former trial but the note sued on, and that the jurors could not have been unduly influenced by that. The record does not disclose what testimony was offered. It simply shows that plaintiff offered his testimony, and rested. And on the second trial, as appears from the first bill of exceptions, he offered considerable testimony besides the note. But whether much or little, they heard all the plaintiff’s testimony; and if that made out a prima faeie case, and they heard nothing more, their convictions in favor of the plaintiff would naturally become more settled and fixed during the interval between the two trials, and they would scarcely enter the second. inquiry entirely impartial as between the parties. Famulener v. Anderson, 15 Ohio St. 475,
[64]*643. Cotemporaneous written and parol contracts. [63]*63The second matter we shall notice is, the refusal of the court to permit the defendant to offer any proof of the matters alleged in the fourth paragraph of his answer. The action was on a note given for a sewing machine. The fourth defense alleges substantially, that at the time of the purchase [64]*64of the machine, and the giving of the note, the vendor and payee agreed to furnish the defendant all the material necessary ior the manuíacture oi quilts ' t A enough, at a stipulated price, to pay for the raachine, and that payment of the notes was to be demanded only in case of a failure on the part of the defendant to manufacture the material as furnished into quilts; that the defendant agreed to do this work, and has ever since been ready and willing to do it, and has repeatedly demanded of the vendor such material, and the latter has refused to deliver it, and that such contract was in parol. Of the rules applicable to a question of this kind, that parol testimony is inadmissible to contradict or change the terms of a written contract, and that the fact of a written contract does not exclude the possibility of a valid cotemporaneous parol contract, there can be little question. The difficulty is in the .application of these two rules. It is alleged that there was a cotemporaneous contract, and its terms are given. As the court rejected all evidence thereof, it must, for the purposes of the case, be taken to be the fact. Was it valid ? Or perhaps more correctly, was it merged in the written agreement? That depends upon whether it was a separate and independent agreement. It may be conceded that some of the allegations in this defense are of matters conflicting with the terms of the written contract; but still we think that it is distinctly averred that there was a cotemporaneous contract for work, a contract separate and independent from the contract evidenced by the note, and in no respects contradictory and conflicting with its terms. The one is a promise to pay money; the other a contract to furnish work. The existence of either, neither conflicts with nor contradicts the other. A., contracts to sell to B. a horse, at a stipulated price. The contract is reduced to writing. At the same time A. contracts with B. to furnish him work, hauling, plowing, or otherwise, with the horse sold. The latter is in parol — yet it in no manner conflicts with or contradicts the former. Both may have been made, and both be valid. So here, the vendor sold to the [65]*65vendee a sewing-machine, at a stipulated price. The contract therefor was reduced to writing. At the same time he made another contract, to furnish work to be done on the machine. This was in parol. But its existence in no manner limits or contradicts the former. Each might have been made without the other. They are separate and independent contracts — one a contract of sale, and the other a contract for work. By breach of the former, the vendee became subject to an action for the stipulated price. By breach of the latter, the promisor became liable for whatever damages the other party suffered from the former’s failure to furnish the work; and as the note was not transferred until after due, such claim for damages could be set up as a defense in this action. We have ,assumed in this, that such a contract in fact existed. We of course do not know what the testimony will disclose; but having alleged such a contract, defendant was entitled to offer testimony to prove it. Babcock v. Deford, 14 Kas. 408. For these errors the judgment must be reversed, and the case remanded.
4. Action on note owner.
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The opinion of the court was delivered by
Brewer, J.:
1 petition in error; when dismissal no bar. This case has been Here before, .having been brought then upon an attempted “case-made.” The case-made having been improperly signed and allowed, the petition in error was dismissed. (18 Kas. 425.) , Counsel for plaintiff in error had however, fortunately for bis client, preserved some of the errors complained of in two bills of exceptions, which were as appears by the journal entry duly allowed, signed and ordered made a part of the record. The dismissal of one petition in error, on the ground that the record attached to it is illegal and insufficient, is no bar to a subsequent action based upon a legal and sufficient record. There has been no adjudication upon the merits, no inquiry into the alleged errors. The record has not heretofore been so presented that we could examine it.
2 Juror incompetent on second trial. Many matters are presented by counsel for plaintiff in error, only two of which however we shall notice. And the first is as to the competency of certain jurors. The case was called for trial on the 17th of December, a jury was impanneled, the plaintiff offered his testimony and rested, and the defendant offered testimony to which plaintiff objected. The objection was sustained, and there-J J , * upon defendant obtained leave to amend his bill of particulars by verification. Upon this plaintiff applied for a postponement. The application was sustained, the jury discharged, and the trial postponed to the 28th of December. On the 28th, the case was again called for trial, and, several of the jurors who served on the trial upon the 17th, were placed in the jury box. The defendant duly objected to them on the ground that they had served as jurors upon a former trial, but the court overruled the challenge, and they were sworn and served as'jurors a second time. In this was error. It is good ground of challenge by the statute, that [63]*63one “has formerly been a juror in the same cause.” (Gen. Stat., p. 680, § 270.) And to bring one within this ground of challenge, it is not essential that the case shall have been at such former time fully tried and a verdict returned, or the jury discharged because unable to agree. It is enough if the case has been partially tried, and a portion of the testimony received. The idea is, that a juror having once served will have opinions more or less strongly settled from the testimony he has heard, and of- course he will have such opinions whether he has heard much or little testimony. Indeed, it would seem as though there were greater danger of injustice from a juror who has heretofore heard only one-side of the case than from one who has heard both. But the statute authorizes no inquiry as to the extent of the influence already exerted, or the strength of the opinions already formed by the testimony. It is enough, that serving as a juror on a former trial, he has heard the testimony then offered. It deems it safer to disqualify all such jurors. Counsel say in the brief that nothing was given in evidence on the former trial but the note sued on, and that the jurors could not have been unduly influenced by that. The record does not disclose what testimony was offered. It simply shows that plaintiff offered his testimony, and rested. And on the second trial, as appears from the first bill of exceptions, he offered considerable testimony besides the note. But whether much or little, they heard all the plaintiff’s testimony; and if that made out a prima faeie case, and they heard nothing more, their convictions in favor of the plaintiff would naturally become more settled and fixed during the interval between the two trials, and they would scarcely enter the second. inquiry entirely impartial as between the parties. Famulener v. Anderson, 15 Ohio St. 475,
[64]*643. Cotemporaneous written and parol contracts. [63]*63The second matter we shall notice is, the refusal of the court to permit the defendant to offer any proof of the matters alleged in the fourth paragraph of his answer. The action was on a note given for a sewing machine. The fourth defense alleges substantially, that at the time of the purchase [64]*64of the machine, and the giving of the note, the vendor and payee agreed to furnish the defendant all the material necessary ior the manuíacture oi quilts ' t A enough, at a stipulated price, to pay for the raachine, and that payment of the notes was to be demanded only in case of a failure on the part of the defendant to manufacture the material as furnished into quilts; that the defendant agreed to do this work, and has ever since been ready and willing to do it, and has repeatedly demanded of the vendor such material, and the latter has refused to deliver it, and that such contract was in parol. Of the rules applicable to a question of this kind, that parol testimony is inadmissible to contradict or change the terms of a written contract, and that the fact of a written contract does not exclude the possibility of a valid cotemporaneous parol contract, there can be little question. The difficulty is in the .application of these two rules. It is alleged that there was a cotemporaneous contract, and its terms are given. As the court rejected all evidence thereof, it must, for the purposes of the case, be taken to be the fact. Was it valid ? Or perhaps more correctly, was it merged in the written agreement? That depends upon whether it was a separate and independent agreement. It may be conceded that some of the allegations in this defense are of matters conflicting with the terms of the written contract; but still we think that it is distinctly averred that there was a cotemporaneous contract for work, a contract separate and independent from the contract evidenced by the note, and in no respects contradictory and conflicting with its terms. The one is a promise to pay money; the other a contract to furnish work. The existence of either, neither conflicts with nor contradicts the other. A., contracts to sell to B. a horse, at a stipulated price. The contract is reduced to writing. At the same time A. contracts with B. to furnish him work, hauling, plowing, or otherwise, with the horse sold. The latter is in parol — yet it in no manner conflicts with or contradicts the former. Both may have been made, and both be valid. So here, the vendor sold to the [65]*65vendee a sewing-machine, at a stipulated price. The contract therefor was reduced to writing. At the same time he made another contract, to furnish work to be done on the machine. This was in parol. But its existence in no manner limits or contradicts the former. Each might have been made without the other. They are separate and independent contracts — one a contract of sale, and the other a contract for work. By breach of the former, the vendee became subject to an action for the stipulated price. By breach of the latter, the promisor became liable for whatever damages the other party suffered from the former’s failure to furnish the work; and as the note was not transferred until after due, such claim for damages could be set up as a defense in this action. We have ,assumed in this, that such a contract in fact existed. We of course do not know what the testimony will disclose; but having alleged such a contract, defendant was entitled to offer testimony to prove it. Babcock v. Deford, 14 Kas. 408. For these errors the judgment must be reversed, and the case remanded.
4. Action on note owner. It may be remarked, in view of the new trial, that one ■\yho is in fact the owner of a note negotiable by indorsement may maintain an action upon it, although no indorsement has been made to him; and that an indorsement subsequent to the commencement of the action made by, the payee may relate back to and í’atify a prior sale of the note by the agent of the payee. A new trial is awarded.
All the Justices concurring.