Shambaugh v. Current
| Decision Date | 14 April 1900 |
| Parties | S. R. SHAMBAUGH v. CURRENT & SANDERSON et. al., Appellants |
| Court | Iowa Supreme Court |
Appeal from Jackson District Court.--HON. A. J. HOUSE, Judge.
ACTION on account for the price of certain cattle sold by one Bohart to defendants. Plaintiff claims as the assignee of Bohart. The defenses were fraud and breach of warranty, the particulars of which will appear in the opinion, so far as necessary to convey an understanding of the points ruled upon. There was a trial to jury, verdict and judgment for plaintiff, and defendants appeal.
Affirmed.
Hayes & Schuyler and Murray & Farr for appellants.
Ellis & Ellis and W. C. Gregory for appellee.
The court took the issue of fraud from the jury for want of any evidence to establish it. We do not understand that serious complaint is made of this action, nor do we see how it could consistently be questioned, under the evidence.
II. A motion to strike certain portions of the answer was sustained, and error is assigned upon the ruling. The answer was quite lengthy and made up of different divisions, two of which, in varying terms, but with no substantial difference set up the defense of breach of an oral warranty. One of these divisions was stricken on this motion, as redundant. If erroneous, this ruling was not prejudicial; for the matter thus eliminated all appeared in the second division of the answer, which was permitted to stand. Defendants contend they had the right to plead the same defense as many times as they saw fit. We might concede this but they had a right to prove it only once, and this they were given an opportunity to do under the answer as it was allowed to stand. The motion to strike was sustained as to the sixth division of the answer, which claimed that the assignment of the account to plaintiff was not bona fide, and asked that Bohart be made a party to the suit. The claim sued on was non-negotiable, and any defense that could have been urged against Bohart was open to defendants as against plaintiff. Appellants confess that they can find no authority directly in point which sustains their contention. This, with the fact that there appears to be no good reason for requiring such action as here asked, is enough to justify the ruling of the trial court. A question quite similar in principle was passed upon by this court in Kelly v. Insurance Co., 82 Iowa 137, 47 N.W. 986. In that case the defendant claimed the policy of insurance upon which plaintiff sued had been assigned to another person, and asked that such third person be brought into the action. The trial court refused the request, and we approved its holding. Vimont v. Railway Co., 64 Iowa 513, cited by appellants, is against, rather than in support of, the claim made.
III. The warranty relied on consisted in the representation by Bohart that a part of the cattle sold were "thoroughbred" red polled cattle. To show its breach, a number of witnesses were called by defendants, and asked, in substance, to state whether the animals were "thoroughbred." Objections to these questions were sustained, and this, it is claimed, was error. If it was error, the rulings were without prejudice; for in each instance the witness gave his opinion in another form, to the effect that the animal asked about was not "thoroughbred." As an example, the witness Sanderson stated that the progeny of pure bred, red polled cattle do not develop horns, or slugs, which are abortive horns, and that a calf of the cow Psyche, which was one of the cows sold, did develop such slugs. In a similar manner, each of the witnesses, to whom the questions were addressed which the court ruled out, expressed his opinion that the animal inquired about was not a "thoroughbred," and gave his reason for so thinking.
IV. The cattle sold as thoroughbred were registered in the herd book of the Red Polled Cattle Club of America, of which club J. C. Murray, one of counsel for defendants was secretary and in which both of the defendants held official positions. Murray once owned the cattle in question. He sold them to Bohart. They were registered while Murray owned them. On cross-examination, defendant Current was asked a number of questions with relation to the herd book; its authority as to pedigree among dealers, and similar matters. These questions were all objected to and the...
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