Halligan v. Keeler

• Decision Date: 06 October 1914
• Docket Number: 29279
• Citation: 148 N.W. 971,167 Iowa 72
• Parties: JAMES F. HALLIGAN, Appellee, v. CHARLES A. KELLER, Appellant
• Court: Iowa Supreme Court

148 N.W. 971

167 Iowa 72

JAMES F. HALLIGAN, Appellee, v. CHARLES A. KELLER, Appellant

No. 29279

Supreme Court of Iowa, Des Moines

October 6, 1914

Appeal from Scott District Court.--HONS. A. J. HOUSE and WM THEOPHILUS, Judges.

Affirmed.

Isaac Petersberger, for appellant.

Sharon & Higgins, for appellee.

WEAVER J. LADD, C. J., and EVANS and PRESTON, JJ., concur.

OPINION

THE opinion states the nature of the action and the material facts.--Affirmed.

WEAVER J.

The substance of plaintiff's claim is that he advanced money, at defendant's request, for the purchase and maintenance of a laundry business in the city of Davenport, and that there is due and unpaid from the defendant the sum of $ 1,882 and interest. The answer of defendant, in addition to a denial, pleads an alleged accounting between the parties, in which it was found that defendant's indebtedness to plaintiff upon the transactions in controversy was the sum of $ 1,772.23, of which sum defendant then and there paid $ 850, leaving now due plaintiff $ 992.23, and for this sum, with interest from August 20, 1909, judgment was offered on the trial. In support of such defense, defendant exhibits and relies upon a receipt given him by plaintiff, under the date named, for $ 850, upon which receipt is a memorandum indicating that the unpaid balance of indebtedness was but $ 992.23. Plaintiff admits giving the receipt, but testifies that a mistake was made in the added memorandum by the omission from the computation of certain specified items, and that the balance due, after crediting this $ 850, was in fact $ 1,882.07. On the trial the plaintiff, having testified to his version of the dealings with defendant, rested his case, and, the defendant having offered no evidence except the receipt and memorandum above mentioned, the court sustained a motion to direct a verdict for plaintiff for the larger amount, and, from the judgment on that verdict, defendant appeals.

It should here be said that plaintiff's claim as to the mistake in the receipt was not pleaded until after verdict, when he was permitted to file a reply to the answer, in which he set up the facts substantially as he had testified to them. Error is assigned upon the allowance of this pleading, but we think it clearly within the court's discretion to permit the filing, thus making the pleadings conform to the evidence and to the theory of the trial.

Some question is raised whether plaintiff's right of action if any, is not upon a certain written agreement between the parties. The alleged written contract is not pleaded or relied upon in petition or answer, and the answer in effect concedes plaintiff's right of recovery upon the case made in the petition; the sole contest being upon the amount of defendant's...