Atkins v. Anderson
| Decision Date | 25 April 1884 |
| Citation | 19 N.W. 323,63 Iowa 739 |
| Parties | ATKINS v. ANDERSON |
| Court | Iowa Supreme Court |
Appeal from Polk Circuit Court.
THE plaintiff, as the assignee of one Kellog, seeks to recover of the defendant for a failure to comply with his written contract, by which he agreed to furnish to Kellog carpenter work to the amount of $ 500. The defendant by answer took issue with the averments of the petition, and there was a trial by jury, and verdict and judgment for the plaintiff. Defendant appeals.
AFFIRMED.
Wm Kennedy, for appellant.
Gatch & Weaver, for appellee.
I. By the written contract between Kellog and the defendant, Kellog purchased of the defendant a burglar and time-lock safe, at the sum of $ 900, and as the consideration therefor the defendant gave to Kellog another safe at the agreed price of $ 400, and agreed to give Kellog carpenter work to the amount of $ 500, to be done between the first day of May and the fifteenth day of July, 1879, and it was stipulated that the claim for carpenter work could not be turned into a money demand against Anderson without notice in writing of not less than ten days. And by said written contract Kellog assigned and sold to Anderson his business as a banker and the good will thereof.
The principal question in controversy upon the trial was, whether or not the defendant failed to furnish the carpenter work as he agreed to do, and whether the claim had by the proper notice been converted into a money demand.
It was averred in the petition that Kellog performed all of the conditions of the contract on his part. This was denied by the answer. The court instructed the jury that, when a fact is alleged by one party and denied by the other, the party alleging the fact must show by a preponderance of the evidence the truth of the fact alleged. It is claimed by counsel for the appellant that plaintiff did not prove that Kellog had performed the written contract. It is a sufficient answer to this position that all of the acts to be done by Kellog were executed by the written contract. By the contract the property in the safe was vested in Anderson, and the banking business and good will were transferred to him. It was not necessary to show that Kellog delivered possession of the safe, and that he did not interfere in the bank business, or the good will thereof, after he had transferred it to Anderson. The only facts necessary for him to prove were that Anderson failed to furnish the carpenter work without the fault of Kellog, or the plaintiff, his assignee and that the proper notice to make the claim a money demand had been given by Kellog or the plaintiff.
II. Next, it is claimed that the court erred in refusing to permit the defendant to fully inquire into the nature and extent of the rights of the plaintiff under the assignment claimed by him. Counsel does not in argument specifically point out the ruling upon the point which it is claimed is erroneous, and we think he was given the fullest latitude in this respect.
III. There was a former suit between the parties, involving substantially the same claim, and the defendant on the trial in this case offered in evidence the shorthand notes of the testimony of a witness taken in the former trial. The notes were excluded on the motion of the plaintiff. The court based its ruling upon the fact that the notes had not been certified by the short-hand reporter. It is claimed that this ruling was erroneous. Whether it was erroneous or not we need not determine, because the record does not show that the evidence contained in the notes was at all material to the issues in this case. If the defendant intended to claim that he was prejudiced by the ruling, he should have had the record show that the evidence was material.
IV. In the former action between the parties there was an issue upon the merits, and also the question was made whether or not the claim had become a money...
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