Hunt & Co. v. Higman
| Decision Date | 17 December 1886 |
| Citation | 30 N.W. 769,70 Iowa 406 |
| Parties | HUNT & CO. v. HIGMAN |
| Court | Iowa Supreme Court |
Appeal from Woodbury Circuit Court.
ACTION on two promissory notes. The defense pleaded was that defendant had delivered to plaintiffs a promissory note executed by the Marsh Binder Manufacturing Company, and that it was agreed between the parties that plaintiffs should receive said note as payment on the note sued on, but that they had neglected to credit the amount of said note thereon. The case was tried to the court without the intervention of a jury, and there was a judgment for plaintiffs for the full amount of the notes. Defendant appeals.
AFFIRMED.
John N Weaver, for appellant.
A. C Strong, for appellee.
I.
Defendant moved the court to exclude certain portions of the evidence of a witness whose testimony was taken by deposition. The objection was made when the deposition was offered to be read. The record shows that the ruling on the objection was reserved. The cause was taken under advisement by the court, and was decided at a subsequent term; but it does not appear that any ruling was made on the objection. A portion of the evidence objected to related to the consideration of the notes sued on,--a matter about which no question was made in the pleadings. It was therefore irrelevant and immaterial; and that was the objection urged against its admission. The witness was also asked whether plaintiffs had received the note of the Marsh Binder Manufacturing Company as payment pro tanto of the debt which defendant was owing them, or as collateral security; and he answered that they received it as collateral security. His testimony showed, however, that the negotiation under which the note was delivered to plaintiff was conducted by a correspondence between the parties, and there was no conflict in the evidence as to that fact. The nature of the contract between the parties was to be determined, therefore, from the correspondence that passed between them. The statement of the witness as to the contract under which plaintiff received the note was in the nature of a conclusion drawn from the facts and circumstances of the transaction. It was therefore incompetent; and that was an objection urged against it.
If the circuit court had expressly ruled that this evidence was admissible, we would presume, as a matter of course, that it was considered, and weight given to it in the determination of the case. Counsel for defendant contends that, as the court omitted to make any ruling on the motion to exclude the evidence, the presumption should be indulged that it was received and considered. But we are warranted in disturbing the judgment of a trial court, in an ordinary action, only when it affirmatively appears that some prejudicial error was committed in the trial or proceeding in which the judgment was rendered. The presumption is in favor of the correctness of the action of the court. This rule has long been settled, and it is based upon the soundest considerations of policy. Under it we are required to presume that the circuit court, while it did not formally exclude the objectionable testimony, gave it no consideration in the determination of the case. Van Steenburg v. Milford Water-power Imp. Co., 64 Iowa 711, 21 N.W. 155.
II. After the cause had been submitted to the court, defendant filed an amendment to his answer for the purpose, as was alleged, of conforming the pleadings to the proof. The original answer alleged that plaintiffs received the note of the Marsh Binder Manufacturing Company under an express contract between the parties that it was to be taken in payment pro tanto of the debt from defendant to them. By the amendment, the allegation that there was an express contract was withdrawn, and a state of facts was pleaded from which an agreement by plaintiffs to take the note in payment of the debt would be implied. It was also alleged, in effect, in the amendment, that plaintiffs had converted said notes to their own use. On plaintiffs' motion the amendment was stricken from the files. We think defendant was not prejudiced by this ruling.
The evidence which tended to prove the facts from which the agreement to take the note in payment would be implied had been introduced under the issue as it stood before the amendment was filed. If it had been sufficient to prove those facts, defendant would have been entitled to avail himself of the defense under the issue as thus framed. The variance between the allegation in the original answer and the proof would have been immaterial, and would have been disregarded by the court, under Code, § 2686. In other words, the allegation that there was an express contract that plaintiff should take the note in payment of the debt would be sustained by proof of a state of facts from which an agreement to that effect would be implied. The allegation in the amendment that plaintiffs had converted the note was properly stricken out, on the ground that there was no evidence tending to support it.
III. It is insisted that the judgment is contrary to the evidence. As stated above, the negotiation between the parties, which resulted in the delivery of the note of the Marsh Binder Manufacturing Company to plaintiffs, was carried on by letter. On the twentieth day of May, 1884, (which was after the maturity of one of the notes sued on,) defendant wrote to plaintiff, asking for an extension of time thereon. In his letter he stated to them that he held the note of the manufacturing company, (which had been indorsed to him,) and offered to send it to them if...
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