42 Iowa 452 | Iowa | 1876
III. The third instruction given by the court Is objected to as misleading and inapplicable, for the reason that there was no such issue as contemplated by the instruction. The plaintiff claimed the property under the assignment of the lease to him, and that he entered into possession with the knowledge and consent of Redmond. Besides this he testified that Redmond put him in possession of the office and that he was informed that Redmond had a mortgage on the property. Under these circumstances the instruction is neither misleading or inapplicable. Nor is the sixth instruction objectionable for the same reasons and the additional one because of the averments in the petition which it is said were inserted by mistake, but as to such mistake we have no knowledge.
IY. The fifth instruction is objected to on the ground that there was no evidence to support it. The instruction iábased on the theory that the plaintiff voluntarily surrendered possession of the property. The evidence tends to'show that the plaintiff was not ejected from the office or deprived of the property by force. That is to say, no physical force was used. Redmond asserted his right to take possession under the mortgage in strong and emphatic language. But there was testimony tending to show, after some talk, that plaintiff voluntarily left the office. Whether this testimony was sufficient is not for us to determine. The defendant had the right to have this question submitted to the jury.
Y. The testimony of Redmond tends strongly to show that he did not take possession of the accounts or any property not covered by the mortgage, therefore the eighth instruction was properly given. For aught that appears the plaintiff*
VI. Testimony was admitted tending- to show that Evans and the plaintiff were partners 'and as such jointly had possession of the property. This is assigned as error. Such testimony tended to disprove the allegation in the petition that plaintiff had the sole and exclusive possession of the property and was therefore clearly admissible.
Affirmed.