Holt v. Brown

• Decision Date: 23 April 1884
• Parties: HOLT v. BROWN AND OTHERS.
• Court: Iowa Supreme Court

63 Iowa 319

19 N.W. 235

HOLT

v.BROWN AND OTHERS.

Supreme Court of Iowa.

Filed April 23, 1884.

Appeal from Clark circuit court.

Action at law. Trial by jury, verdict for plaintiff, and defendants appeal.McIntire Bros., for appellants.

Stuart Bros. and John Chaney, for appellee.

SEEVERS, J.

The plaintiff and defendants entered into the following written contract:

“OSCEOLA, IOWA, Dec. 5, 1879.

Geo. C. Holt has this day sold to S. P. Brown & Co. ten thousand pounds choice factory butter, at 26 cents per pound, put up in patent tin pails, to be delivered at said Brown & Co.'s option, up to the fifteenth day of January, 1880.”

The plaintiff claims that this contract afterwards, during December, 1879, was so changed by parol as to increase the quantity of butter to 20,000 pounds. Ten thousand pounds of butter was delivered, and paid for, and defendants denied having made any other or different contract than that in writing. The plaintiff made, in writing, what he claims was a sufficient offer of performance on his part, and brought this action to recover damages sustained by reason of the defendants' failure to perform on their part. The defendants denied the material allegations of the petition, and pleaded, as a counter-claim, that the butter delivered was not choice factory butter, and that they were thereby greatly damaged. Counsel for the appellee insists that the abstract is incorrect, and they have filed an amended abstract. The correctness of the abstract is denied by counsel for appellant, and they insist we shall examine the transcript and determine which abstract is correct. Instead of so doing, we have concluded to disregard the amended abstract, and in the determination of the case have ruled alone on the appellants' abstract.

1. The defendants filed a motion to strike out certain portions of the petition, which it is insisted the court erroneously overruled. The motion did not strike at any vital part of the petition. If it had been sustained the defendants would not have been in any respect benefited, nor were their rights prejudiced by overruling the motion, besides which, the motion was filed after an amended answer had been filed.

2. It is assigned as error that the court erred in overruling the motion to suppress the depositions of David, Isaac, and George Epler, Milton Holt, R. B. Shurer, and John H. Myer. The abstract does not contain any evidence purporting to have been given by the three witnesses last named, and the motion was sustained as to the deposition of George Epler. The only question, therefore, we can consider is whether the court should have suppressed the depositions of the two Eplers first above named. Several reasons are assigned in the motion to suppress, more than one of which is apparently well taken, if true, but we cannot determine whether this is so, because the abstract only contains a single question and answer thereto of the examination in chief of Isaac Epler, and what purports to be an answer to a question asked David Epler. Among the grounds stated in the motion to suppress was that the evidence of the witnesses was immaterial, incompetent, and irrelevant. This objection the record enables us to determine. The only evidence stated in the record to have been given by Isaac Epler, in the examination in chief, is as follows: “I am well acquainted with the kind and quality of butter put up by Mark Gruly. I never, to my knowledge, handled butter put up in patent tin pails, and cannot say what effect it would have on said butter from Osceola, Iowa, to Leadville, Colorado. My opinion is it would injure it.” The evidence of David Epler is, in substance, the same. It should be stated that the defendants were doing business in Leadville, Colorado, and the butter was shipped to that market. That the evidence above set out is immaterial we think must be conceded. Mark Gruly is the man who packed or put up plaintiff's butter, but the witness does not state whether the quality of butter put up by Gruly was good or bad. This evidence could not possibly have affected the defendants prejudicially. The witness, also, at the close of his evidence, expressed an opinion which we are unable to see he was qualified as an expert to express. But we are unable to conclude this evidence had any effect on the jury prejudicial to any one. It must be remembered that the material question was not what the condition of the butter was when it reached Leadville, but was it “choice factory butter” at the place of delivery, Osceola, Iowa. We have examined the whole evidence with special reference to this question, and are forced to the conclusion that we ought not to reverse this case because of the admission of the evidence above set out.

3. It is suggested in argument that as the enlargement of the written contract was by parol, it was within the statute of frauds, and therefore, as we understand, it is claimed that evidence tending to establish such parol contract was inadmissible. It is exceedingly doubtful whether the subject-matter of the contract is within the statute. Code, § 3665. But be this as it may, the statute was not pleaded, and no such objection was made when the evidence was offered, nor is it assigned as error that any of the evidence was inadmissible because the statute required to be in writing. The first and only time we find the statute of frauds mentioned is in the argument of counsel. We therefore are of the opinion the objection conceding it to be well taken comes too late.

4. The circuit court correctly construed the written contract, and held that up to January 15th the defendants had the option to call for the butter at any time, but when that time had passed without a demand the defendants were entitled to a reasonable time to perform. The defendants did not make...