The Keokuk Stove Works v. D. Hammond & Son

• Decision Date: 22 May 1895
• Citation: 63 N.W. 563,94 Iowa 694
• Parties: THE KEOKUK STOVE WORKS v. D. HAMMOND & SON, et al., Appellants
• Court: Iowa Supreme Court

63 N.W. 563

94 Iowa 694

THE KEOKUK STOVE WORKS v. D. HAMMOND & SON, et al., Appellants

Supreme Court of Iowa, Des Moines

May 22, 1895

Appeal from Monroe District Court.--HON. W. D. TISDALE, Judge.

Action upon a written contract, to recover three hundred and fifty seven dollars, with interest, for stoves sold and delivered. Defendants answered, and the case proceeded to trial. After plaintiff rested, the defendants withdrew their answer, and filed a substituted answer. The original answer is not set out in the record. In their substituted answer they admitted the execution of the contract, and that the plaintiff shipped to them the stoves described therein, but denied that there is due to the plaintiff the sum claimed. They alleged, by way of affirmative defense, a breach of said contract on the part of the plaintiff, to their damage, and that they were induced to enter into said contract by certain false and fraudulent representations of the plaintiff's agent; that by reason of said breach of the contract, and of said fraud, they have been damaged in the sum of two hundred dollars; and that there is due to the plaintiff not to exceed one hundred and fifty-seven dollars, which amount they paid into court for the use of the plaintiff, together with four dollars, as the accrued costs. Plaintiff, in answer to said counterclaim denied every allegation thereof, and alleged that defendants had sold a large portion of said stoves, and offered the balance for sale, wherefore they have waived the right to complain of the alleged defect therein. A verdict was returned in favor of the plaintiff for three hundred and twenty-three dollars and seventy-two cents, and judgment entered thereon, from which the defendants appealed.

Affirmed.

J. C Mabry and W. A. Nichol for appellants.

T. B Perry and J. C. Davis for appellee.

OPINION

Given, C. J.

I.

Appellants present as their assignment of errors the following "(1) The court erred in refusing to permit the defendants to open and close the case, while at the same time the burden of proof in the whole case was on the defendants. (2) The court erred in sustaining objections of the plaintiff to the testimony of David Hammond, T. C. Hammond, and M. M. Hinton. (3) The court erred in overruling objections made by the defendants to the testimony of J. M. Walters, and each of the witnesses introduced by the plaintiff. (4) The court erred in refusing to allow defendants to show that one J. R. Duncan had and kept for sale the same kind of stoves which plaintiff sold to defendants, from the time said contract or order was made till the time of the trial of this case, and that such stoves were constantly offered for sale during said time, for the purpose of showing fraud and misrepresentation, as well as a breach of contract. (5) The court erred in giving instructions four, six, seven, eleven and one-half, twelve, and thirteen. (6) The court erred in holding that the verdict of the jury was not contrary to law. (7) The court erred in holding that the verdict of the jury was sustained by the evidence. (8) The court erred in overruling defendants' motion for a new trial, and rendering judgment on the verdict." Not having the answer before us upon which the case proceeded to trial, we cannot determine upon which party the burden rested. It does not appear in the record that the defendants at any time claimed the right to open and close the case, nor that the court refused them such a right; but, even if that did appear, we could not say, in the absence of the answer, that it would have been an abuse of discretion, or prejudicial to the appellants. Section 3207 of the Code is as follows: "An assignment of error need follow no stated form, but must, in a way as specific as the case will allow, point out the very error objected to. Among several points in a demurrer, or in a motion, or instructions or rulings in an exception, it must designate which is relied on as an error, and the court will only regard errors which are assigned with the required exactness; but the court must decide on each error assigned." It will be observed that the...