Fitzgerald v. McCarty

Decision Date20 April 1881
Citation55 Iowa 702,8 N.W. 646
PartiesFITZGERALD v. MCCARTY AND OTHERS.
CourtIowa Supreme Court

OPINION TEXT STARTS HERE

Appeal from Palo Alto circuit court.

The defendants are husband and wife, and this action was brought to recover against both for goods, wares, and merchandise sold and delivered, on the ground the same were chargeable against both as a family expense. For the balance claimed to be due on one of the accounts, it was alleged in the petition the defendant Martin McCarty had given his note. The execution of the note was denied under oath. There was a trial by jury, judgment against both defendants, and they appeal.T. W. Harrison, for appellants.

Crawford & Soper, for appellee.

SEEVERS, J.

1. Against the objections of the defendants the plaintiff was permitted to introduce in evidence his books of original entry, and also his ledger. It is said by counsel for the appellee the latter was admitted for the purpose of facilitating an examination of the accounts which were scattered through several books of original entry. The difficulty is the record does not show the ledger was admitted for or limited to this purpose. All that appears is that it was admitted in evidence. This being so, the presumption must follow it was admitted for all purposes. There could be no objection to counsel taking the ledger, and by its aid, in presence of the jury, the more readily find the items charged in the account in the books of original entry. For this purpose it was unnecessary to introduce the ledger in evidence.

2. The plaintiff testified the defendant Martin McCarty executed his note in settlement of one of the accounts, and that he had made an entry thereof in his ledger, and nowhere else. As to this entry it is insisted the ledger is the book of original entry, and therefore, as to such item, said book was properly admitted in evidence. So far as shown, the item aforesaid is the only one in the ledger which is claimed to be an original entry, and that the plaintiff kept books in which were duly entered his daily transactions clearly appears. The ledger, therefore, is not and cannot be considered a book of original entry, and was inadmissible in evidence. It is urged by counsel the entry aforesaid was made in the presence of the defendants, and for that reason the ledger was admissible. It is sufficient to say the record fails to disclose such a state of facts.

3. The court instructed the jury as follows: (1) For a full statement of the issues in this case, you are referred to the pleadings, the petition, and answer, which are hereby made a part of these instructions. (2) The material inquiry in the pleadings is-- First, as to how much is due plaintiff on his claims and accounts; and, second, for how much, if any, of the plaintiff's claim is Mary Ann McCarty, wife of her co-defendant, liable?”

In McKinne v. Hartman, 4 Iowa, 154, it was held to be the duty of the court to determine what issues were made by the pleadings, and that the jury could not rightfully do so. This case has been repeatedly followed. See Bebee v. Stutsman, 5 Iowa, 274; Reed v. Mason, 14 Iowa, 542; Pharo v. Johnson, 15 Iowa, 561; Little v. McGuire, 43 Iowa, 447;Hempstead v. City of Des Moines, 52 Iowa, 303.

In Fannon v. Robinson, 10 Iowa, 272, the rule above stated was recognized, but it was said it did not necessarily follow the court must in every case state specifically what the issues were; that this was only required where it was necessary and proper to do so. There may be cases where a simple instruction may sufficiently present the question to be determined by the jury without reference to the pleadings or the issues tendered therein. To unnecessarily state the issues in such a case would probably tend to prolixity instead of clearness.

In Potter v. C., R. I. & P. R. Co. 46 Iowa, 399, it was held if the court undertakes to state the issues it should do so fully. We cannot conceive of a case in which the first instruction given would be proper; for the court recognizes the fact that there are issues to be determined by the jury, and says to them you must ascertain what such issues are by an inspection of the pleadings.Such instruction, in our opinion, is erroneous. Nor is the error cured by the second instruction, because the issues are not fully stated therein. It not being stated, there was an issue as to the execution of the promissory note, which was strongly contested, and in subsequent instructions this was recognized.

4. The court gave the jury the following instruction: (6) The only criterion in ascertaining what is a ‘family expense’ is the determination of the question whether the expenditure was for the family--was it incurred for, on account of, and to be used in, the family? With this explanation it applies to the expenses of the family, without limitation or qualification...

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