Frank v. Berry

Decision Date04 May 1905
PartiesFRANK v. BERRY.
CourtIowa Supreme Court

OPINION TEXT STARTS HERE

Appeal from District Court, Linn County; Wm. G. Thompson, Judge.

Judgment for damages, from which defendant appeals. Affirmed.Redmond & Stewart, for appellant.

Grunewald Bros. and Jamison & Smyth, for appellee.

LADD, J.

Plaintiff became the husband of Mrs. Atwood December 25, 1900, and claims to have lived happily with her until early in 1902, when her attitude toward him changed, and, after two temporary separations, he left her in September, 1903. He attributed all his troubles to interference on the part of defendant.

1. Plaintiff recognized nine letters addressed to his wife, and the photograph of another, as being in the handwriting of defendant. These were received in evidence, over objection that his competency had not been shown. As he had only seen the defendant write a receipt and sign his name in a subscription book, the ruling was correct. Hyde v. Woolfolk, 1 Iowa, 159;State v. Farrington, 90 Iowa, 673, 57 N. W. 606;State v. Hall (S. D.) 91 N. W. 325, 65 L. R. A. 151; Elliott on Evidence, § 1100; Greenleaf on Evidence (15th Ed.) § 577; Rogers on Expert Testimony (2d Ed.) § 122. The fact that the witness was not an expert and had enjoyed little business experience went to the weight to be given his testimony rather than to its admissibility.

2. When the photograph of a letter was offered and admitted, objection that it was secondary evidence was not urged. The letter appears in the abstract, and is followed by the statement: Counsel for plaintiff now reads photographed letter marked Exhibit No. 10.’ Thereafter the defendant first raised the above objection, and it was overruled. This was not error, as the photograph was then before the jury, and could not properly have been excluded save on a motion to strike.

3. In one of these letters the writer informed plaintiff's wife that he had procured a box with a key to it, No. 490, and cautioned her to remember the number. The postmaster testified that a man of defendant's name rented a box, being that number at the post office, some time during the same month. As they were corresponding, and he asked in the letter containing the statement that she write, the postmaster's evidence was admissible.

4. The signature of Charles E. Berry attached to the answer was admitted in evidence, over objection, as a standard of comparison with the handwriting of the letters. The statute requires every pleading to be subscribed by the party or his attorney (section 3580, Code), and the court had the right to assume, in the absence of any showing to the contrary, that defendant, in filing his answer purporting to be signed by himself, had complied with the law. Filing such an answer was an assertion that the signature was genuine, and was rightly received in evidence. See State v. Farrington, 90 Iowa, 673, 57 N. W. 606.

5. Plaintiff was allowed, over defendant's objection, to testify that he had $600 when married, and that during the 2 1/2 years he had lived with his wife he had expended all save $40 in support of his family, of which fact she had knowledge. The evidence was not very material, but had some tendency to show that he had cared for her properly. On the other hand, the inference was open that the separation may have resulted because of the exhaustion of plaintiff's funds rather than the interference of defendant. On these grounds its admission may be sustained.

6. The jury was instructed not to consider the evidence of plaintiff's wife's bad character prior to her marriage. Such evidence could have been received only in mitigation of damages. Conway v....

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3 cases
  • Repp's Estate, In re
    • United States
    • Iowa Supreme Court
    • January 10, 1950
    ...to the jury and they were the judges as between the conflicting statements of the two subscribing witnesses. See, Frank v. Berry, 128 Iowa 223, 103 N.W. 358; Ayrhart v. Wilhelmy, 135 Iowa 290, 112 N.W. Such a clause, reciting the observance of statutory requirements as to the execution of t......
  • In re Repp's Estate
    • United States
    • Iowa Supreme Court
    • January 10, 1950
    ...to the jury and they were the judges as between the conflicting statements of the two subscribing witnesses. See, Frank v. Berry, 128 Iowa 223, 103 N.W. 358;Ayrhart v. Wilhelmy, 135 Iowa 290, 112 N.W. 782. Such a clause, reciting the observance of statutory requirements as to the execution ......
  • Frank v. Berry
    • United States
    • Iowa Supreme Court
    • May 4, 1905

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