Mounce v. Kurtz
| Decision Date | 05 February 1897 |
| Citation | 70 N.W. 119,101 Iowa 192 |
| Parties | A. V. MOUNCE v. D. H. KURTZ, Appellant |
| Court | Iowa Supreme Court |
Appeal from Linn District Court.--HON. WILLIAM G. THOMPSON, Judge.
ACTION for a breach of contract to cut cord wood. Judgment for plaintiff, and the defendant appealed.
Affirmed.
Powell & Harman for appellant.
Charles W. Kepler and Rickel & Crocker for appellee.
I.
The petition shows that a verbal contract was made between the parties, by which the plaintiff was to cut into cord wood for defendant, all the timber on one hundred and sixty acres of land, for the agreed price of two dollars and forty cents per cord, and deliver the same at Lisbon, Iowa; that, in pursuance of the contract, plaintiff cut and delivered one thousand and thirty cords of wood, after which defendant refused to permit plaintiff to complete his contract; that there remained to be cut on the contract two thousand three hundred cords; and that, under the contract, there was a profit to plaintiff per cord of sixty cents. The action is to recover the damage. An amended and substituted answer contained a denial of the averments of the petition, and pleaded an abandonment of the contract by plaintiff, after cutting the amount claimed and also a rescission of the contract by agreement of the parties. Afterwards the answer was amended by admitting the making of an oral contract in terms substantially as alleged in the petition, except that, by the answer the wood was "to be cut and delivered as defendant might direct." The court instructed the jury that the contract as set out by plaintiff, was admitted, but the burden was with the plaintiff to show the breach of it.
It is now urged that the court did not fairly present the issues to the jury, because it did not state that part of the agreement, as admitted by the answer, that the wood was to be cut and delivered as defendant might direct. There was no issue as to that particular fact. It came into the pleading as an admission of fact, entirely immaterial, unless it was so pleaded as to be relied on as a defense. Nothing in the defenses pleaded presents the thought that a recovery was sought to be avoided because of defendant's right to say when the wood should be cut and delivered. The court made the issue more favorable to the defendant, for it required a finding that the defendant prevented plaintiff from completing the contract, to justify a recovery.
Nor was there error in the failure of the court to instruct as to a general denial. The contract admitted was, for all the...
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