Miller v. Johnson
| Decision Date | 13 March 1928 |
| Docket Number | No. 38607.,38607. |
| Parties | MILLER v. JOHNSON. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Cerro Gordo County; M. H. Kepler, Judge.
Action at law to recover damages for the loss of a quantity of oats by fire. Verdict and judgment for the plaintiff, and defendant appeals. Affirmed.J. C. Robinson, of Mason City, for appellant.
L. R. Boomhower, of Mason City, for appellee.
This is an action at law to recover as damages the market value of a quantity of oats, which appellee alleges were destroyed, or completely ruined, by a fire negligently set by appellant. The oats, which were grown on a portion of appellant's farm which he had leased to appellee, were stored in a building on the premises and belonged to them jointly--one-third to the former, and two-thirds to the latter.
The answer of the appellant in a single division or count admitted that the building in which the oats were stored was burned on or about March 30, 1925, denied each and every other allegation of the petition and amendment thereto, and alleged as a defense that appellant had made a full and complete settlement and adjustment of appellee's claim by giving him the residue left after the fire of his share of the oats and a stack of millet hay containing six or seven tons. The testimony disclosed that the oats were not totally consumed by the fire, but that they were seriously burned and charred. After the fire, what was left of the oats was recovered from the basement and piled in a rick on the ground. There is some conflict in the evidence as to the exact condition of the grain after the fire.
The court refused to permit appellant to introduce evidence to prove the value of the residue. This ruling is made the basis of the principal assignment of error. The court, at the time the ruling was made, announced that the evidence was, under the issues tendered, wholly immaterial.
[1] Under section 11114 of the Code of 1924, both inconsistent defenses and any new matter constituting a defense may be set up in the answer. The plea of new matter constituting a defense must, however, expressly or impliedly admit the cause of action and that but for such plea, there must be a recovery. Howes v. Carver, 7 Iowa, 491;Donahue v. Prosser & Jones, 10 Iowa, 276; Martin v. Swearengen, 17 Iowa, 347; Anson v. Dwight, 18 Iowa, 241;Morgan & Rogers v. Hawkeye Insurance Co., 37 Iowa, 359;Day v. Mill Owners' Mutual Fire Ins. Co., 75 Iowa, 694, 38 N. W. 113;Runkle v. Hartford Ins. Co., 99 Iowa, 414, 68 N. W. 712;Jackson v. Independent School District, 110 Iowa, 313, 81 N. W. 596;Burns v. Railway Co., 110 Iowa, 385, 81 N. W. 794;Rudd v. Dewey, 121 Iowa, 454, 96 N. W. 973.
[2] A general denial in the same division or count of the answer which sets up new matter constituting a defense will be disregarded. Burns v. Railway Co., supra; Rudd v. Dewey, supra. In the former case, we said:
“Had the defendant admitted and denied in the same division, or in an answer not divided, there could be no question but that the admission, rather than the denials, would be taken.”
And in the latter:
“Under our Code it has uniformly been held, in a series of decisions, the first of which was rendered before there was any specific provision on the subject, that defendant might, in different divisions of his answer, plead a general denial and a confession and avoidance, and...
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