Swanson v. Allen

Decision Date16 May 1899
Citation79 N.W. 132,108 Iowa 419
PartiesH. SWANSON v. R. H. ALLEN, Appellant
CourtIowa Supreme Court

Appeal from Sac District Court..--HON. S. M. ELWOOD, Judge.

ON the twenty-second day of June, 1896, the plaintiff executed a written order to the Aultman Company, of Ohio, to deliver to him a complete threshing outfit through its agent, R. H Allen, at Early, Iowa, accompanied by a specific written warranty. At that time Allen had on hand a sample threshing outfit of the same company, differing from the one ordered in having a narrower belt, a telescope weigher, instead of a wagon elevator, and a jacket on the boiler. The machinery not coming, about July 15th the parties arranged that the plaintiff should take the sample outfit, the loader to be substituted for the weigher, and a wider belt to be furnished. In payment, a Case machine was turned in by Swanson at six hundred dollars, and six notes of two hundred and eighty-nine dollars and thirty-three cents each, payable at different dates, were executed by him to the Aultman Company, or R. H. Allen. The petition alleged in the first two counts the purchase of the outfit of the defendant on his oral warranty that it was of good material, and would do as good work and as much work in all kinds of grain as any other of like size and capacity, and a breach thereof. In count 1 the plaintiff prayed for damages, but in count 2, in addition, averred the tender of the return of the outfit, and asked judgment for the value of the property paid, and the cancellation of the notes executed. Count 3 was like count 1 save that it alleged the personal warranty mentioned as an inducement to take the outfit, even though the property was bought of the company. The answer consisted of a general denial, and an averment that the sale was by a written order and that the property was accepted by the plaintiff thereunder; and, in the counterclaim, recovery was claimed on three notes matured because of the nonpayment of interest. Trial to jury, verdict and judgment for the plaintiff, and the defendant appealed.


Wright & Nugent and C. D. Goldsmith for appellant.

W. A. Helsell and R. M. Hunter for appellee.



Nothing is of greater importance in a jury trial than that the court shall make clear and certain to the jurors the very issues they are to determine. Ordinarily those required to serve are unaccustomed to the duties devolving upon them, and are likely to become confused by the mass of conflicting evidence and the illimitable arguments of counsel. The very purpose of instructing them is to make plain the issues they are to try and the rules of law by which the evidence is to be examined and applied. Pleasants v. Fant, 89 U.S. 116, 22 Wall. 116, 22 L.Ed. 780; Duthie v. Town of Washburn, 87 Wis. 231 (58 N.W. 380). They should not be required to search the pleadings, even though copied into the instructions, for the controverted facts to be passed upon. It is often difficult for the experienced lawyer to fix upon the precise contentions of the parties, and there can never be any degree of certainty that jurors, without legal training, have been able to do so from an examination of the pleadings; besides, it is as much the duty of the judge to extract the issues from the pleadings, and make them known and intelligible to the jurors, as it is their duty to pass upon them when this has been done. The practice of referring the jury to the pleadings has been condemned by this court. Porter v. Knight, 63 Iowa 365, 19 N.W. 282; Keatley v. Railway Co., 94 Iowa 685; Bryan v. Railway Co., 63 Iowa 464. Also that of reading them as part of the charge. Hall v. Carter, 74 Iowa 364, 37 N.W. 956. Copying the pleadings into the instructions as a statement of the issues is subject to the same criticism as the use of the originals, if the jury are permitted to take these upon retirement for deliberation. The only difference lies in their attachment as a preface to the other portion of the charge, and the use of the original separately. In Gorman v. Railway Co., 78 Iowa...

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