Holt v. Brown & Co.
| Decision Date | 23 April 1884 |
| Citation | 19 N.W. 235,63 Iowa 319 |
| Parties | HOLT v. BROWN & Co |
| Court | Iowa Supreme Court |
Appeal from Clarke Circuit Court.
ACTION AT LAW; trial by jury; verdict for plaintiff, and defendants appeal.
AFFIRMED.
McIntire Brothers, for appellants.
Stuart Bros. and John Chaney, for appellee.
The plaintiff and defendants entered into the following written contract:
The plaintiff claims that this contract afterward, during December, 1879, was so changed by parol as to increase the quantity of butter to twenty thousand 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 this abstract is denied by counsel for appellants, and they insist that we shall examine the transcript and determine which is correct. Instead of so doing, we have concluded to disregard the amended abstract; and in the determination of the case have relied alone on the appellants' abstract.
I. 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.
II. It is assigned as error that the court erred in overruling the motion to suppress the deposition 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, which 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 are 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 which 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:
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 Graly 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 Graly was good or bad. This evidence could not possibly have affected the defendants prejudicially. The witness, also, at the close of his evidence, expresses an opinion which we are unable to see he was qualified as an expert to express. But we are unable to conclude that 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.
III. 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 it 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 that the objection, conceding it to be well taken, comes too late.
IV. The circuit court correctly construed the written contract, and held that, up to January fifteenth, the defendants had the option to call for the butter at any time, but when that time had passed without a demand, the plaintiff was entitled to a reasonable time to perform. The defendants did not make any call or demand for the butter under the contract. It is not claimed, therefore, that plaintiff failed to perform on his part; but it is insisted that he was not ready to perform--that is, to deliver any more butter...
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