Root & Sons' Music Co. v. Caldwell
| Decision Date | 05 October 1880 |
| Parties | ROOT & SON'S MUSIC COMPANY v. CALDWELL ET AL |
| Court | Iowa Supreme Court |
Appeal from Appanoose Circuit Court.
ACTION at law upon a bond executed by defendants to plaintiffs to secure indebtedness to be contracted by defendant Caldwell to plaintiff. There was a verdict and judgment for plaintiffs defendants appeal. The facts of the case appear in the opinion.
REVERSED.
H. L Marshall and George D. Porter, for appellants.
J. C Coad, for appellees.
I.
The action is upon a bond whereby defendant Edwards became surety for the other defendant on account of pianos, organs, etc., which he was about to purchase of plaintiffs. The defendant Edwards, among other defenses, set up that he was never notified of the acceptance of the bond sued upon, or of the purchase of goods by the other defendant upon the credit of the bond, and that said indebtedness of Caldwell to plaintiff was contracted under another bond given by him with another surety. Other defenses pleaded and issues formed by the pleadings need not be set out.
The plaintiffs file an amended abstract showing that the exceptions in the case are preserved by a skeleton bill, and alleging that it is not shown that all the testimony was preserved, and that no part of it is identified in the record, and it is alleged that the evidence set out in the appellant's abstract does not appear of record in the court below. The plaintiffs also move to strike from the abstract whatever evidence is therein set out, upon the grounds just stated.
The defendants deny this amended abstract, and appeal to the record to support their denial, and the correctness of their abstract. We have, therefore, found it necessary to examine the transcript of the record found in this court. The record before us is not in the form of a skeleton bill of exceptions, and all the evidence is properly identified, and appears in due order in the bill of exceptions. We think the objections raised by plaintiffs in their motion and by their amended abstract are not supported by the record. The motion must be overruled.
II. Two letters written by the defendant Caldwell to plaintiffs were admitted against the objection of defendant Edwards. These letters contained statements by the writer of declarations of Edwards tending to establish that he admitted liability upon the bond. The objections to these letters were overruled, and they were admitted as evidence to be considered upon the issues raised by the answer of defendant Edwards. This ruling is clearly erroneous. The defendant Caldwell, being the principal in the bond, could not bind the other defendant by repeating his declarations or admissions. Such evidence is clearly hearsay, and, as against Edwards, was...
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