City of Fort Madison v. Moore

109 Iowa 476 | Iowa | 1899

WaterMAN, J.

The .evidence is in substantial 1 conflict, and we shall not disturb the finding of the jury because of any matter of fact.

I. The work to be done was fully described in specifications which were referred to in the advertisement for bids. Defendants’ bid, which was in writing, was duly accepted., and the acceptance entered of record. No other contract was made, although the notice for bids provides for such an 2 instrument. Appellants seem to claim something on this account, but we do not see how they can derive any advantage therefrom. There was a contract by the acceptance of defendants’ bid, and the bond in suit was-givon to secure its performance.

It is further urged that this bond was given to secure,, by its terms, the performance of the contract, when, by statute, it should have been to> secure the doing of the “work.” Wo cannot agree with appellants that the liability 'of defendants, 3 would be altered if the condition was as they claim it should be. Furthermore., we find that in section 4, chapter 7, Laws Twenty-fifth General Assembly, it is provided that bonds of this kind shall be conditioned for the faithful performance of the “contract.”' 4 The breach of the bond is sufficiently charged in the petition, but, if thisi were not so, it is too late-now to make such objection.

II. The petition recites the passage of certain resolutions by the council, under the authority of which the city officers assumed to act in doing this work. These resolutions-5 were admitted in evidence over defendants’ objection. The answer put in issue the adoption of such resolutions. As they were the basis of the city’s right to proceed., they were properly admitted.

A like complaint is made of the admission of other resolutions adopted, which declared the contract forfeited, and ordered that suit be brought to recover1 damages, and also1 6 the resolution letting the contract to defendants. The latter was clearly competent, and as to the others we can see no possible harm to the defendants in the court’s action in receiving them in evidence. If it was erroneous, — which we do not hold, — it was in no way prejudicial.

There is a further assignment of error based upon the-admission of evidence going to show that the specifications were altered before the contract was signed. This is without merit. Among the one hundred and four assignments of error there are some others which relate to the reception and exclusion of testimony. We do not feel called upon to do-more than say that none of the rulings, are of such a character as to justify a reversal of the case.

III. We come now to tbe objections to tlie instructions. It is first charged that the issues were not properly given to the jury. In stating the case, the trial court gave the substance of the pleadings (with a single exception, which will 7 be noticed later) in the order in which they were filed. This, it is claimed, was error. While we have held it erroneous to refer the jury to the pleadings for the issues, we have never held the court might not set forth the questions in the manner here followed. On the contrary, we have said this may properly be done, under some circumstances. Fleming v. Town of Shenandoah, 71 Iowa, 458, Crawford v. Nolan, 72 Iowa, 673. Talcing the whole charge together, we think the jury was fairly informed as to the points in dispute.

One issue tendered by the principal defendants was a want of consideration for a certain written instrument, signed by them, in which they waived any claim for damages on 8 account of a change in the work. This issue was not stated in the charge, and complaint is made of the omission. We find that no prejudice resulted, because the consideration of the original agreement would sustain a subsequent modification. Quarry Co. v. Reichard, 40 Iowa, 161.

Defendants submitted twenty-five instructions to be given the jury. All -were refused, and an exception is founded upon the court’s action with relation to each of them. Error is also assigned upon each of the twenty-six instructions given by the court. To discuss fully all the grounds of complaint as to these matters would extend this opinion beyond all reasonable limits, and, as the questions raised are not of 8 a general character, such discussion could be of no benefit to the profession. Suffice it to say that the-instructions given present the law quite fairly and fully, and because of this the court was warranted in refusing to give those asked by defendants.

IV. Appellants’ motion to strike tbe denial filed by-appellee, and also its amended abstract and argument, because not served in time, will be overruled. Tbe denial of 10 appellants’ abstract was not sufficiently specific to require attention from them, and we do not strike additional abstracts and arguments from tbe files be-cause-not filed in time, when tbe submission of tbe cause has not been thereby delayed. Spencer v. Moran, 80 Iowa, 374; Lathrop v. Doly, 82 Iowa, 272; Boggs v. Douglass, 89 Iowa, 150; Gregg v. Spencer, 96 Iowa, 501. — Affirmed.