Cook & Mitchell v. Robinson

42 Iowa 474 | Iowa | 1876

Rothbock, J.

To notice all the errors complained of would unduly extend this opinion. We shall, therefore, content ourselves with briefly alluding to those which, in our judgment, demand attention. It is proper here to remark that the evidence shows the machines to be practically worthless, and on this there is no conflict in the evidence.

1 EVIDENCE. order of introduction: practice. I. It is alleged as error that defendant was permitted to show the warranty of the machines, and the breach thereof, and consequent failure of consideration, without first connecting the plaintiffs, either as partners or ag parties, with an agreement for extension of time. The order in which evidence is allowed to be introduced is a matter in the discretion of the court, and in this class of cases where there are distinct propositions to be established, in order to make a case or a defense, it is not error to allow the party to present his evidence in such order as suits his convenience.

II. It is alleged as error that the feourt admitted evidence of the declarations of Potter and McKinney as to the alleged partnership) of Cook & Mitchell with Potter, McKinney & Co.

2.___.when inadmissible practice This was manifest error. The issue sought to be thus established was the alleged partnership, and in no view of the case was it competent, as tending to show that relation, to allow the statements of either Potter or McKinney to be given to the jury’as against Cook & Mitchell.

If this error had not been corrected by the court, it would have constrained us to reverse the case. But the court in the second paragraph of its instructions to the jury, in plain terms takes these declarations away from their consideration, saying that they are not proper evidence. This being done the error is cured, and the plaintiffs were not prejudiced thereby.

3. INSTRUCTIONS: when imperfect III. The plaintiffs excepted to nearly all of the instructions given by the court on its own motion, and to the refusal to give a number of instructions asked by them. Some of the instructions asked were, with slight and not improper modifications, incorporated into those given by the court, and although the instructions given contain some abstract propositions of law not necessary to be given in the case, and some expressions which, by a critical analysis of the language, are incorrect, yet upon the whole we are not prepared to say that they contain error to the prejudice of the plaintiffs, or that they tended to mislead the jury on any issue in the case.

4. VERDICT: conflict of evidence IY. The main question is, can this verdict be supported by the evidence? We are free to say that sitting as a court to determine tliis case, with this abstract alone before us, we would find for the plaintiffs. But there is a strong conflict in the evidence as to what transpired between the parties on the 15th of February, 1871. If what the defendant states be true, then the verdict is correct. The jury had this witness before them, and there may have been, and probably was, that in his manner which impressed them with the truth of his testimony; and it .will be remembered that Mitchell is the only witness introduced by the plaintiffs, who was in a position to contradict the defendant, and under the rule so often stated, and which need not be repeated here, we cannot interfere with the verdict. We need not give the evidence above alluded to. It will be understood by the parties and will be of no interest to the general reader.

Y. Pending the motion for new trial, the court required the defendant to allow judgment to go against him on the two notes of $123 each, there being really no evidence impeaching the consideration for them, as they were not given in purchase of the machines. To this the defendant assented, and judgment was thereupon rendered thereon, and the motion for new trial overruled. To this plaintiffs excepted.

Finding as we do that there is no prejudicial error in the case, as to the notes given- as the price of the machines, the plaintiffs are not in a position to complain that the court below, with defendant’s consent, rendered judgment for the two notes, to which there was really no defense.

Aefirmed.