Clement v. Drybread
| Decision Date | 01 February 1899 |
| Citation | 78 N.W. 235,108 Iowa 701 |
| Parties | CLEMENT ET AL. v. DRYBREAD. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from district court, Palo Alto county; W. B. Quarton, Judge.
Action at law, aided by attachment, on two promissory notes and an account. Defendant filed an answer and counterclaim. There was a trial to jury, verdict for defendant on his counterclaim, and, from a judgment rendered thereon, plaintiff appeals. Reversed.John Menzies, W. L. Crissman, and E. A. Morling, for appellant.
B. E. Kelly and Clarke & Cohenour, for appellee.
While many of the facts were controverted below, they are practically conceded so far as the questions presented by this appeal are concerned. Plaintiff firm was engaged in the wholesale clothing business in the city of Chicago. Defendant was a retailer in the same line, at Emmetsburg, in this state. Defendant started in business at Emmetsburg at the solicitation of plaintiff, and under a contract with it, which was partly written and partly oral. The oral portion of the contract, as defendant claims it, was substantially as follows: Plaintiff was to furnish defendant all the clothing and other goods belonging to such a stock, necessary to start him in the retail business, at the usual wholesale and current prices, and thereafter was to supply such goods as defendant needed to keep up his stock. If plaintiff had not the required goods in its own stock, it was to pay for them when purchased by defendant of others. Defendant was to pay for all such goods to plaintiff by remitting the profits of his business, over and above actual running expenses, including $15 per week for his own personal use. Plaintiff was to carry all bills until such time as defendant could make payment therefor out of the profits of the business, payment being required only in case profits were made. The obligations of defendant under this contract were in writing. It is not material to any issue on this appeal that they be set out in full. Something will be said of them hereafter.
1. This controversy had its immediate origin in the following transactions: On the date therein mentioned, plaintiff wrote defendant as follows: Defendant, in response, executed and sent the notes requested. Thereafter plaintiff sent this letter: Again defendant complied, and sent the notes asked for. The first notes given were taken up and canceled by plaintiff, and it is upon these last obligations, with some items of account, that plaintiff's claim is founded.
2. The defense is that nothing was due plaintiff under the contract at the time the notes were executed; that they were given solely for plaintiff's accommodation, and were by it to be taken care of when due; and that, therefore, they were without consideration. The principal question for determination is whether the terms of the prior oral contract can be considered, either for the purpose of altering the terms of the notes or to show that they were without consideration. Some other matters are discussed, and very many others are suggested, in argument. We shall notice all such as we deem material, in the course of what we have to say.
3. Before proceeding to the merits of the case, it is necessary that we dispose of some questions pertaining to the record, which are presented by appellee.
Plaintiff objected to the evidence offered to establish the prior agreement and negotiations leading up to the giving of the notes, and also claims to have excepted to the instructions in which the jury was told that such matters should be considered. It is charged by appellee that the instructions were excepted to en masse, in the motion for a new trial, and that the assignments of error based thereon cannot be considered, if any of the challenged instructions are good, as some unquestionably are. A motion for a new trial is not necessary to secure a review, in this court, of exceptions that have otherwise been properly preserved. Code 1873, § 3169; Hunt v. Railway Co., 86 Iowa, 15, 52 N. W. 668, and cases cited.
The objections to the testimony are all properly saved here, and each of the instructions complained of was marked as follows: These exceptions, the abstract recites, were taken at the time the charge was given. This, we think, is sufficient to entitle plaintiff to a hearing of these matters, if the motion for a new trial is entirely disregarded. Kellow v. Railway Co., 68 Iowa, 470, 23 N. W. 740, and 27 N. W. 466.
Again, it is said that the judgment below was not excepted to, and therefore the case is not subject to review by this court. An exception to the judgment is not necessary where it has been taken to the conclusion of law upon which the judgment is founded. Haefer v. Mullison, 90 Iowa, 372, 57 N. W. 893, and cases cited. The order of the court overruling the motion for a new trial was duly excepted to in the case at bar, and exceptions to the admission of testimony and to the giving of instructions, as we have already seen, were properly preserved. This was sufficient. Jordan v. Kavanaugh, 63 Iowa, 153, 18 N. W. 851. Moreover, we think that proper exceptions were taken to the judgment. We set out such portion of the entry as will show upon what we found this belief: The exception, which we have italicized, seems to be clearly to the judgment, although it is not the conclusion of the entry.
Some objections are made to the assignments of error. We deem it sufficient to say that they are specific enough to present the question discussed.
4. This brings us to the merits of the case. The issues presented were raised in different ways,--by motion to strike from the answer, objections to testimony, and exceptions to instructions. The main question discussed, however, is as stated. It is insisted by appellant that no evidence of the original contract should have been received or allowed any weight in determining the rights of the parties with relation to the...
To continue reading
Request your trial