Stephens v. Brill

Decision Date08 April 1913
Citation140 N.W. 809,159 Iowa 620
PartiesEDGAR STEPHENS, Appellee, v. JOHN G. BRILL, Appellant
CourtIowa Supreme Court

Appeal from Sac District Court.--HON. F. M. POWERS, Judge.

THIS is an action to recover the purchase price of a horse sold at auction. The defendant pleaded a warranty and breach thereof and a rescission of the contract of purchase on account of such breach of warranty. Upon trial to a jury, there was a verdict and judgment for the plaintiff. The defendant appeals.

Affirmed.

Chas D. Goldsmith, for appellant.

Elwood & Stanfield and Malcolm Currie, for appellee.

OPINION

EVANS, J.

The defendant purchased at an auction sale a certain three year old colt, the property of the plaintiff, for $ 102. As indicated by the record, the auction sale was one of a series conducted at Sac City by an auctioneer, Lookingbill, whereby he offered and put up for sale the property of various owners who chose to employ his facilities for that purpose. It is the contention of the defendant that the auctioneer warranted the horse as follows: "The said auctioneer, in the presence and hearing of the said plaintiff represented, warranted, and declared that the said horse was merchantable and sound in every respect; that he was tractable, docile, kind, free from vice, well broken to hitch, and drive in both single and double harness, and that he was not afraid of and would not shy at automobiles; that defendant relied upon the representation and declarations as being true, and, believing them to be true, made his bid of $ 102 as stated and received the horse on such conditions." He pleaded also breach of such warranty and averred also that, because of such breach, he immediately returned the horse to the place where he received him and notified the auctioneer and the plaintiff of his refusal to keep him. The plaintiff denied the alleged warranty. The principal emphasis of the defendant's complaint as made upon the trial was that the horse was vicious and would not drive single. The case is submitted here on four exceptions.

I. Appellant's first complaint is that the trial court failed to submit the issues to the jury in a concise form and that its statement of the issues was in substance a copy of the pleadings. This complaint has reference only to the allegations of the defendant's answer, alleging warranty and breach thereof. There was no controversy over the allegations of the petition nor any denial thereof. It is true that, in stating the contention of the defendant by way of affirmative defense, the trial court followed quite closely the allegations of his answer. We have heretofore held that it is improper to refer the jury to the pleadings to ascertain the issues. Lindsay v. Des Moines, 68 Iowa 368, 27 N.W. 283. We have also criticized the practice of copying the pleadings into the instructions with unnecessary fullness. We have held also that where the pleadings themselves are concise, as they ought to be, the language thereof may be followed in the instructions. McDivitt v. Railway Co., 141 Iowa 689 at 696; Canfield v. Railway Co., 142 Iowa 658. This latter holding is peculiarly appropriate where the pleadings adopted in the instruction are those of the complaining appellant. We shall be slow to hold in favor of an appellant that his own pleadings were too prolix and involved to be fairly adopted in the instruction of the court. The error, if any, at such point should ordinarily be deemed as prejudicial to the opposing party and not to the party whose pleadings were adopted. In the case before us the allegations of the answer appear to be reasonably concise. Indeed, the appellant does not contend otherwise. The purport of his argument is that, because the court adopted his exact language, a rule was thereby violated which entitled him to a new trial. It is the duty of the trial court to make the issue as plain to the jury as practicable, regardless of whether the language of the pleadings does so or not. If the pleadings themselves do this in a concise way, there is no reason why the court should avoid them.

II. The trial court instructed the jury that the burden was upon the defendant to prove that the horse was "warranted substantially as stated in defendant's answer." The expression here quoted was also used in other instructions. Appellant contends that the effect of the instruction in this form was to refer the jury to the pleadings in violation of the rule already referred to. It must be borne in mind, however, that the trial court had in a previous instruction advised the jury as to what the claim of the defendant's answer was. We think the jury could not fail to understand that the expression complained of had reference to the allegation of the answer as previously set forth by the court in its instructions.

III. It will be noted that the answer of the defendant pleaded that the horse was warranted by the auctioneer to be "merchantable and sound in every respect." The defendant, as a witness, did not testify in support of this allegation. The testimony of the defendant in support of the alleged warranty was as follows: "I says, 'Is this horse broke?' to Mr. Lookingbill, and he says, 'Yes, he is broke single and double and guaranteed to go and he would not be afraid of automobiles.'" Because of this testimony of the defendant, it is now contended that the court erred in submitting to the jury the issue of an alleged warranty that the horse was "merchantable and...

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