Barlow, Wood & Co. v. Brock

25 Iowa 308 | Iowa | 1868

Beck, J.

i. detinue: demand: agency. I. In the progress of the trial, plaintiffs proved that, by their agent, they made a demand for the property upon defendant, Brock, before ,, n the suit was commenced.

The defendants offered to prove by Brock, that, the agent making the demand “ did not show or offer to show or produce any authority to make such demand.” The court, upon the objection of plaintiffs, did not permit the evidence to go to the jury. This ruling of the court is assigned for error. Without deciding whether a demand was or was not necessary to be proved in order to entitle plaintiff to recover in the action, or whether, if demanded, the agent would be required to produce the authority under which he acted, he certainly was not required so to do until it was demanded. The defendant, failing to require of the agent, at the time, the production of his authority, could not object at the trial that it was not exhibited to him, especially as he did not question the power and authority of the agent to make the demand.

g_ practice. II. Objection is made to the form of the judgment, in that it does not designate and declare plaintiffs’ right to the property, and is not alternative for the property or its value, etc.

No exception appears to have been taken to the judgment upon these grounds.

The objection cannot therefore be now considered.

8. Practice: aefen.es not Eeiow. III. It is claimed that the judgment against Keith & Snell is erroneous because it does not appear from the pleadings or evidence that they had,. at any r » j ?/ j time, possession of the property, or had knowledge of its ownership, or that it had been levied upon by the sheriff, or that any demand was made upon them for the property, etc., etc. These matters may have been a proper defense to the action and probably could have been raised, either upon demurrer or answer to the petition. But, not having been so raised, they cannot be urged for the first time in this court.

Affirmed.