Allen v. Bryson

• Decision Date: 12 December 1885
• Citation: 25 N.W. 820,67 Iowa 591
• Parties: ALLEN v. BRYSON
• Court: Iowa Supreme Court

25 N.W. 820

67 Iowa 591

ALLEN v. BRYSON

Supreme Court of Iowa, Des Moines

December 12, 1885

Appeal from Hardin District Court.

BOTH parties are attorneys at law, and this action was brought to recover for professional services performed by the plaintiff for the defendant, and for personal property sold. Several defenses were pleaded, which are sufficiently referred to in the opinion. Trial by jury. Verdict and judgment for the plaintiff, and defendant appeals.

REVERSED.

S. M Weaver, for appellant.

W. V Allen and C. E. Albrook, for appellee.

OPINION

SEEVERS, J.

I.

Preliminary to a consideration of the errors assigned, an objection to the abstract made by the appellee must be determined. The abstract states that "all the evidence introduced, and all offers of evidence made, on the trial, together with all the objections made and exceptions taken by counsel, and all rulings of the court upon said trial, and the entire record in said cause, is contained therein." In an abstract filed by appellee it is stated that appellant's abstract is not correct; that the evidence is not all contained in it in a condensed or other form; that it does not contain over one-third of the evidence taken on the trial, and that what it does contain is disconnected from the order in which it was introduced. We understand that no transcript has been filed, and we are not advised that one was demanded by the appellee. We therefore cannot determine whether the abstract is correct or not. This being so, the appellee insists that many of the errors assigned cannot be considered. But we think, under the circumstances above stated, the correctness of the abstract must be assumed. On its face it appears to be full and complete, and when it so states we think the appellee must, in an abstract filed by him, state wherein the one filed by the appellant is incorrect. We are aware that this rule in some instances casts upon the appellee a burden not contemplated by the rules of this court, in cases where the appellant purposely or negligently has filed an incorrect abstract. Experience, however, teaches us that in a majority of cases in this court the correctness of the appellant's abstract is conceded, and in a large proportion of the remaining cases the corrections made therein by the appellee are easily made, and because of abundant caution. If we should hold that a simple denial of the correctness of the abstract has the effect to require us to examine the transcript, it is obvious that it would be made in every case. Because of the expense, the preparation and filing of the transcripts should not be encouraged. While this is so, the appellee, as a matter of right, may demand one, so as to enable him readily to ascertain whether the abstract is correct. Ordinarily this consideration is sufficiently strong to induce the appellant to prepare an abstract amply sufficient to enable the court to determine the questions discussed by counsel. Experience also teaches us that, in a majority of cases where the appellee files an abstract, it could have been omitted without detriment. If the appellant purposely or negligently prepares an insufficient or incorrect abstract, it is the fault of his attorney, and the court, if its attention is called thereto, would endeavor to inflict such punishment as to prevent a repetition. The objections made to the abstract must be overruled.

II. The defendant pleaded, as a defense, that in February, 1881, which was after at least some of the services for which the plaintiff seeks to recover had been performed, he and defendant had an accounting and settlement of and concerning all their mutual claims and demands, and it was then found and agreed that plaintiff was indebted to the defendant in the sum of $ 300; that the defendant at said time loaned the plaintiff $ 300, and thereupon the plaintiff executed to the defendant a bill of sale, which was made a part of the answer, of certain personal property. The bill of sale shows that in consideration of $ 600 the plaintiff sold the defendant the personal property described therein. The plaintiff, in a reply, pleaded that the sole and only consideration for the so-called bill of sale was the sum of $ 300 advanced to plaintiff by the defendant; and also that the property therein described "was placed" in the hands of the defendant, or included in the bill of sale, in pursuance of an "oral agreement of the parties thereto, for the sole and only purpose of allowing the defendant to use, manage and control the same during a temporary absence of the plaintiff from the state of Iowa;" and within six weeks thereafter the bill of sale was satisfied, and the property turned over to the plaintiff. To this reply the defendant demurred, on the ground that it sought to vary the terms of a written contract by parol. The demurrer was overruled. It should have been sustained. The general rule on this subject is well understood, and the only question is whether this case comes within it. The consideration stated in a written contract, it will be conceded for the purposes of this case, may be impeached and shown by parol to have failed in whole or in part, or to be illegal; but the reply goes much further than this, and states, in effect, that the bill of sale, which is absolute on its face, was in fact a mere bailment of the property for a temporary purpose, and it was pleaded that the parties had thus limited the effect of the bill of sale by a contemporary oral agreement. To our minds, it is entirely clear that this cannot be done. Martin v. Hamlin, 18 Mich. 354; Adams v. Wilson, 53 Mass. 138, 12 Met. 138; Barker v. Buel, 59 Mass. 519, 5 Cush. 519; Peck v. Armstrong, 38 Barb. 215; Forbes v. Waller, 25 N.Y. 430; Hurd v. Gallaher, 14 Iowa 394; Isett v. Lucas, 17 Iowa 503; Gelpcke v. Blake, 19 Iowa 263; Atherton v. Dearmond, 33 Iowa 353.

The appellee insists that the bill of sale, although absolute on its face, is in fact a mortgage, and that it was given for a temporary purpose which has been subserved, and that these matters can be established by parol. Conceding this may be done, it was not pleaded that the bill of sale was a...