29 Iowa 462 | Iowa | 1870
A patient examination of this record, covering just one thousand pages of written matter, has seemed to advise us of, aside from the argument of the many and yet not difficult questions involved in it, and at the same time confirm the necessity for, the forthcoming new rules of the court, by which court and counsel shall be relieved, by the adoption of printed abstracts, of a labor infinitely worse than needless. Without undertak
The law as "to what would constitute these persons partners was given just as found in all the books upon this subject, in a form entirely unexceptionable. And though it should be conceded, that, upon the questions of notice and liability, by being held out as a partner, there was possible error in the instructions, it would not avail defendant (Mahler), since under proper instructions and sufficient testimony the jury have found against him upon an issue that renders the determination of the others entirely unimportant. It is not as though we had a general verdict, and plaintiffs were insisting that the liability as a partner was shown in one or all of these methods.
Nor then, as we could not tell upon which of these the jury found for plaintiffs, if there was error in the instructions as to any that error would vitiate the entire verdict, unless, of course, we could be able to say that as to one,
If, by the method adopted, it was the intention to-bind the firm, and especially when it was so accepted, and the credit given upon the strength of the firm, it would be equally as binding as though signed in the-most formal and regular manner. Signed as the contract was, by a partner of the individuals composing the alleged firm, the true inquiry was, whether it was made upon the credit and for the benefit of the copartnership sought to be charged. And that it was so made should be shown affirmatively. And thus, in brief, the law upon this contested question of fact was well and clearly stated by the court, and thus far there is no just ground for complaint.
In the first place, the instruction as asked ignores Mahler’s liability if he held himself out as a partner,'or if, after the alleged dissolution, he failed to give due notice. It attempts to declare his non-liability, whatever the other circumstances, unless he knew of the representations of the sons and son-in-law, and did not contradict them.
In the second place, in view of what was ruled during the admission of the testimony, and what was said in the instructions in chief, the jury could not have been misled on this subject. They were told that the representations of the others alone would not bind Mahler, unless he knew of the same and did not contra
In the third place, if by possibility the jury did draw a wrong inference from the instructions given, and the action of the court in refusing the one asked, the testimony was so little needed, and the verdict was so strongly supported aside from it, that we should hardly be justified in awarding a new trial.
II. As to the amount of the verdict, there is scarcely room for argument. The testimony is overwhelmingly in plaintiff’s favor that these cattle were neglected, and that in the spring, instead of showing an increase of two hundred pounds per head — the average increase under proper-care and feed, according to the testimony — the whole lot had increased about five thousand five hundred pounds, or a little over thirty pounds per head. They were not “good, merchantable fat beef,” as required by the contract, and the fault was defendants’, or at least the jury could well so find under the testimony. Plaintiffs were not to be limited in their recovery to the mere excess of their payments over the amount expended by defendants for the purchase of feed. For, if by the failure of defendants to properly feed and care for these cattle they were rendered less valuable or profitable to plaintiffs in the spring than they would have been if defendants had fulfilled their contract, plaintiffs would be entitled to this difference. This, in substance, was the rule given to the jury by the court, and acted upon throughout. the trial, without objection. And guided by it, and especially in view of the amount of money paid by plaintiffs upon the contract, defendants have no right to complain of the amount of the verdict.
Affirmed.