Brown v. Cole

45 Iowa 601 | Iowa | 1877

Servers, J.

i. contract: construction of. I. Counsel for appellant state the questions for. determination to be as follows: “Aside from the question of defective and irregular verdict of the jury, it ,. . . seems that all other questions m this case are merged in these two, to-wit: Does the method pointed out by the contract for ascertaining the number of brick mean no more than, and nothing different from, the rule known as ‘masons’ measurement;’ and, shall the openings in the wall, under the reading of the contract, be considered filled with • brick in arriving at the number of brick delivered by defendants.” The question, then, is how, under the terms of the contract, are the brick to be counted. We are unable to see any ambiguity in the contract, either latent or patent, and the contract itself provides the rule for “ counting and enumerating” the brick. If the contract had provided for the delivery of one hundred thousand brick, and there stopped, we suppose the plaintiff would have been entitled to that number of brick by actual count, but the brick were to be “ counted and enumerated in the wall according to the custom and rule of bricklayers in ascertaining the number of brick in a solid wall, not allowing anything for space occupied by openings in wall.” This, then, is the way the parties have determined the brick shall be counted. It is true that the rule adopted by ' bricklayers is at best but an arbitrary estimate, and it is not pretended that the actual number of brick in the wall is thereby ascertained. This, however, is immaterial, because the, parties have stipulated the count shall be made in accordance with that rule. It must be evident that an actual count of the brick was not intended, for the contract contemplates a counting “in a solid wall.” Now, it is simply impossible to count and ascertain how many brick are in a solid wall more than one brick in thickness. The wall was to be solid, and no allowance made for openings. The Circuit Court having construed the contract in accord with the foregoing view, it follows no error was committed in so doing.

2. jury: imverdict^6111 °f II. One of the jurors filed an affidavit that he was sick, and in consequence thereof had agreed to the verdict. And another juror stated in an affidavit that he “ agreed to the verdict solely on account of the sickness of said juror and the apprehended injury to him- by longer confinement, and out of regard for his personal health; that, had said juror been in good health, I would not at the time I.did have consented to said verdict.”

Counter affidavits were made and filed by other jurors tending strongly to show that the sickness of the juror was quite mythical; and we presume the court below overruled the motion for a new trial on the ground that jurors who would so stultify themselves as these men have done were unworthy of belief, and in this view we concur. Besides this, affidavits of this character cannot be received or considered for the purpose of impeaching a verdict. Cowles v. C., R. I. & P. R. R. Co., 32 Iowa, 515, and authorities cited.

Affirmed.