Campbell v. Ormsby
| Decision Date | 18 March 1885 |
| Citation | 22 N.W. 656,65 Iowa 518 |
| Parties | CAMPBELL v. ORMSBY |
| Court | Iowa Supreme Court |
Appeal from Palo Alto Circuit Court.
THE action was originally brought upon a promissory note. By an amendment to the petition, other causes of action were joined and declared upon by plaintiff. There was a verdict and judgment for plaintiff. Defendant appeals.
AFFIRMED.
Soper Crawford & Carr, for appellant.
T. W Harrison, for appellee.
I. The petition, as amended, seeks to recover the balance due upon a promissory note executed by defendant; interest upon money advanced by plaintiff to buy stock, upon a written agreement between the parties for the prosecution of farming business as a co-partnership; for the refusal of defendant to furnish lumber and nails under that agreement, on account of which neglect and refusal the cattle of the partnership were without sufficient sheds, causing the loss of 10 of them; for taxes paid; and for a hay-fork. The defendant, in his answer among other defenses, pleads that, by a written contract entered into between the parties, which was to take the place of the contract under which the partnership was formed, there was a full and complete accounting of all matters arising thereunder, and that plaintiff is barred from claiming to recover therefor. These contracts were introduced in evidence; and there was proof offered by plaintiff and admitted, tending to support the allegations of his petition in regard to the matters for which he seeks to recover in this action.
II. The circuit court in an instruction (the fifth) directed the jury that the last contract "purports to supplant and take the place" of the first; "and it is to be presumed that it was so intended to cover and did cover all the transactions between the parties arising under the contract" first made. "But such presumption may be overcome by evidence; and it is for the plaintiff to overcome such presumption in that way before he can recover for any of the items arising under the contract" first executed. This instruction is made the ground of objection to the judgment, the defendant claiming that the presumption referred to by the court is conclusive, and cannot be contradicted by proof. The position of counsel is that matters arising under the first contract were not for the consideration of the jury; a presumption, which is conclusive, arising upon the last contract, that they had all been settled. The correctness of the position cannot be the subject of inquiry, for the reason that, if the instruction is incorrect, the error is waived by the defendant's asking the court to give an instruction holding substantially the same rule. That instruction is in this language: "If the jury find from the evidence that the contract entered into by the plaintiff and defendant * * * [the contract of settlement] was intended by the parties as a full and final settlement of all matters connected with their farming and cattle partnership, then the plaintiff cannot recover for the items of interest or money advanced by Campbell, nor for loss of stock which occurred during the continuance of the partnership business." This instruction was asked by defendant, as shown by the abstract, before the other instructions were given, together with another one holding that the last contract supersedes the first; but it does not convey the thought, by express language, that the presumption of the settlement of all matters growing out of the partnership is conclusive. The instructions asked clearly contemplate the rule that such presumption is not conclusive, and that it was for the jury to determine upon the evidence whether the parties intended a full settlement of all partnership matters. The instructions asked were refused by the court, for the reason, doubtless, that the rule they present was better expressed in the instruction given.
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