Joy v. Bitzer

• Decision Date: 30 January 1889
• Parties: JOY v. BITZER.
• Court: Iowa Supreme Court

77 Iowa 73

41 N.W. 575

JOY

v.BITZER.

Supreme Court of Iowa.

Jan. 30, 1889.

Appeal from district court, Muscatine county; JOHN N. ROGERS, Judge.

Action to recover damages alleged to be due by reason of fraud and breach of warranty in the sale of ponies. There was a trial by jury, and a verdict and judgment for plaintiff. The defendant appeals.

REED, C. J., dissenting.

J. Carskaddan, for appellant.

E. W. Tatlock, Jayne & Hoffman, and Cloud & Doran, for appellee.

ROBINSON, J.

The petition contains two counts. In the first it is alleged, in substance, that plaintiff purchased of defendant 23 ponies and 1 colt, for the stipulated price of $523: that said ponies and colt were represented and warranted to be sound and free from contagious and infectious diseases, and that plaintiff relied upon said representations and warranty in making the purchase; that in fact said animals were diseased with a contagious and infectious disease, from which 15 of them died; that said disease was communicated to other stock of plaintiff, from the effects of which one horse and one pony died; that it was communicated to members of the family of plaintiff; that by reason of said disease plaintiff was put to extraordinary trouble and expense in the treatment of the ponies, and for extra feed; that plaintiff lost the consideration paid for said ponies by reason of said disease, and in addition has suffered loss and damage to his property, including stock, and to his family, in the sum of $825; that the representations concerning the ponies were false and fraudulent, and were made by defendant for the purpose of cheating and defrauding plaintiff. The second count charges the sale of two ponies to one George M. Benson for the sum of $80, with similar representation and warranty, followed by results of a like character, to the damage of Benson in the sum of $910; that plaintiff is the owner of the claim of Benson. Judgment is demanded on the two counts for $2,500, with interest and costs. The jury returned a verdict in favor of plaintiff for $700, on which judgment was rendered.

1. Appellee filed an additional abstract of the record, in which he denies that the evidence, and rulings on the admission of evidence, were properly preserved and made a part of the record, and denies various allegations of the abstract; and avers that there is no record of any exception taken by defendant, or ruling of the court thereon. The additional abstract also asks the attention of the court to the transcript of the record on file. Appellee contends that his additional abstract has not been denied, and that it must therefore be taken as admitted. See Hunter v. City of Des Moines, 74 Iowa, 215, 37 N. W. Rep. 163;Ferris v. Anderson, 72 Iowa, 420, 34 N. W. Rep. 186;Armstrong v. Killen, 70 Iowa, 52, 30 N. W. Rep. 14. The appellanthas not, in terms, denied the additional abstract, but he has filed the following “statement:” “The correctness of appellant's abstract of the record in this action is denied so persistently and repeatedly by counsel for appellee that the appellant has caused a full transcript of the record of the cause in the district court to be made and certified by the clerk of the court, and filed in this court.” This is followed by a demand that the costs of the transcript be taxed to appellee, and a reference to an attached index of the transcript and abstract, “by the aid of which all material facts and points for the verification of the abstract can be readily found in the transcript.” These statements are not found in connection with an argument, but are included in a separate paper. It is clear that the contents of the paper, taken together, should be given the effect of a denial of the additional abstract. The correctness of the abstract is reaffirmed by necessary implication. We are therefore required to examine the transcript to determine questions raised as to the contents of the record.

2. Appellee has filed a motion to strike from the abstract so much thereof as is claimed to be the evidence in the case, on the ground that it was not properly preserved, identified, and made a part of the record, and asks that the original papers from which the abstract was made be examined. We have caused the clerk of the district court to transmit to this court the short-hand reporter's translation of evidence, which was copied in the transcript of the record now on file. It appears from the evidence now before us that the bill of exceptions signed by the judge was what is known as a “skeleton bill.” It contains the following: “The plaintiff, to sustain the issues on his behalf, introduced the following evidence, as shown by the notes of the official court reporter now on file in this cause, and the said reporter's transcript and extension thereof, duly certified as such transcript. (The clerk will here insert said official certified transcript of said evidence.)” It also contains substantially the same averments in regard to the evidence introduced by defendant, and by plaintiff in rebuttal. The translation certified to us as the one which was copied in the transcript, does not show the cause in which the evidence was given. It commences with the name of a witness, and closes with a certificate of the short-hand reporter, as follows: “ State of Iowa, Muscatine Co. I, [name,] reporter of the district court of Iowa in and for Muscatine county, hereby certify the foregoing to be a full, true, and complete transcript of the testimony in said cause, from my short-hand notes thereof on file, made according to the best of my ability. [Signed]” This certificate was written on the inside of the last leaf of the translation. On the outside was indorsed the following. “ In District Court. Joseph E. Joy vs. Henry Bitzer. Transcript of Evidence by Official Reporter.” This was written in short lines across the ruled ones, in the manner usually adopted for marking folded legal papers, but was not in the hand-writing of the short-hand reporter, and does not appear to have been referred to in the certificate. It is evidently no part of the translation, and cannot be regarded as identifying it. It was said in Hill v. Holloway, 52 Iowa, 678, 3 N. W. Rep. 722, that “the testimony should be so immediately identified as to render it certain what is to be incorporated into the transcript, and become a part of the record, without leaving anything to the determination of the clerk or the parties.” That rule has been approved in numerous cases decided by this court. The clerk cannot be permitted to exercise a discretion as to what evidence should be included in the transcript. In this case the direction contained in the bill of exceptions would have been sufficient had the translation shown by a proper caption, or by a statement in the reporter's certificate, that it contained the evidence given in this case. But the only showing of identity is contained in the indorsement which we have set out. That was made after the translation was completed, and is not in the handwriting of the reporter, nor even of the clerk. In our opinion, the translation was not identified, and the motion to strike the evidence must be sustained. Institute v Coad, 39 N. W Rep. 94.

3. Each count alleged a cause of action founded upon fraud, and also one based upon a breach of warranty. The district court ruled that plaintiff would be entitled to recover upon proof of either of these causes of action. It may be conceded that the petition was vulnerable to objection on the ground that two causes of action were set out in each count, but the defendant failed to make the objection. The court, therefore, properly submitted to the jury both causes of action in each count.

4. The court charged the jury as follows: “If you shall determine that the plaintiff is entitled to recover, either for breach of warranty or for fraud, you will finally have to determine the amount of his damages, the rules in regard to which, in my judgment, are the same in either case, whether of warranty or fraud.” “The ordinary and matter of course rule of damage in such a case is that the plaintiff is entitled...