Jos. T. Ryerson & Son, Inc. v. Roth Bros.

• Decision Date: 15 October 1929
• Docket Number: No. 39705.,39705.
• Citation: 226 N.W. 915
• Court: Iowa Supreme Court
• Parties: JOS. T. RYERSON & SON, INC., v. ROTH BROS. & AKERS ET AL.

226 N.W. 915

JOS. T. RYERSON & SON, INC.,

v.ROTH BROS. & AKERS ET AL.

No. 39705.

Supreme Court of Iowa.

Oct. 15, 1929.

Appeal from District Court, Wapello County; R. W. Smith, Judge.

Action at law upon an account in which a counterclaim was filed. Trial to a jury. Verdict and judgment in favor of the defendant on its counterclaim. The plaintiff appeals. Reversed.Gillies & Daugherty, of Ottumwa, for appellant.

Jaques, Tisdale & Jaques and Max Roth, all of Ottumwa, for appellees.

STEVENS, J.

This is an action on account to recover the agreed price for a quantity of reinforcing steel sold and delivered by appellant to appellee. Appellee admitted that there is a balance of $329.94 due on the account, but interposed a counterclaim for damages. An item of appellee's counterclaim was for expenses, including attorney fees alleged to have been incurred by it in connection with another action brought and pending in the state of Illinois.

The court in submitting the issues to the jury and further in a separate instruction referred to a modification of the original claim in an amendment filed and stated fully appellee's claim as to this item. No evidence whatever was received in support thereof. In a subsequent instruction the court withdrew certain items of the counterclaim, but made no reference to the items complained of. Other instructions specifically referring to certain items of the counterclaim and submitting them to the jury for their consideration were given. The item in question was not one of them. It is the claim of appellant that the court should either have refrained from mentioning the item complained of or specifically withdrawn it from the jury. This contention by appellant is answered by appellee upon the theory that the jury must have understood that the court was not submitting this item, and that, in any event, it was without support in the evidence, and no prejudice resulted. We think it clear that the jury could not well have understood from the instructions, even when considered as a whole, that the item was not for their consideration. Manifestly, it was error to submit an issue to the jury having no support in the evidence. Stafford v. City of Oskaloosa, 57 Iowa, 748, 11 N. W. 668;Davis v. Hansen, 187 Iowa, 583, 172 N. W. 1;Fay v. C., R. I. & P. R. R. Co., 186 Iowa, 573, 173 N. W. 69;Spicer v. Spicer's Administrator, 201 Iowa, 99, 202 N. W. 604.

Complaint is also made of the admission of certain expert testimony. The...