71 Iowa 369 | Iowa | 1887
I. The only defense pleaded to the action is to the effect that the note in suit, with other notes held by plaintiffs against the defendants, were settled by defendant Cochran giving other notes, with security, and turning "over to plaintiffs two notes of other parties; and that, pursuant to this settlement, plaintiffs agreed to surrender and release the note in suit.
The defendants testified that the receipt .was lost, and could not be found, and therefore was permitted to state its contents. The plaintiffs asked an instruction directing the jury, among other matters, that “all questions and disputes as to the language of the written receipt are to be taken' strongly against defendants, and the claim made by them as to its language and construction of the same.” This instruction was rightly refused. The loss of the writing having" been established, the law authorized evidence of its contents, to the end that the real contract of the parties might be known. It throws no discredit upon defendant’s evidence, nor does it raise presumptions against the merits of his claim as to the contents of the writing, thus fettering the defendant’s defense in' order to defeat the truth. If the defendant wrongfully, fraudulently, or purposely withheld the writing, the rule of the instructions would be correct. Upon this ground the plaintiffs insist that it ought to have been given. Rut there is not a particle of evidence tending to sliow that defendants withheld or suppressed the paper, or that it was lost through their fault. Its loss is shown without any evidence tending to show fraud or fault on the part of the defendant. There was, therefore, no evidence to which the instruction was applicable.
Smith was the attorney of the plaintiffs, who made the settlement between the parties, and signed the lost receipt, the contents of which were shown by defendant’s evidence. It was signed after the parties returned from the house of Holmes to defendant’s house. The thought of the instruction is that, as Holmes testified to a contract made at his house, it was not competent to contradict or vary the contract set out in the receipt, for the reason that the law will presume that it was superseded or merged into the contract finally expressed in the receipt. The rule of law here recognized .is, of course, correct, but we think it is not applicable to exclude Holmes’ evidence. He testified that he was a justice of the peace, and the defendant and his wife came to his house to acknowledge the mortgages to plaintiffs. They were accompanied by Smith. The witness understood that plaintiff and defendant had a settlement, and that some notes were to be given up, and others to be taken secured by the mortgages; that one note was to be returned by Smith after the conclusion of a suit; and that the witness suggested that defendant take a receipt for it, and Smith said he would give it if defendant would do some trifling matter not connected with the business. The witness then says “ that was the way the matter was-left.” After this statement he testifies to no agreement whatever between the parties, but expressly states that he did not understand or remember certain terms or conditions called to his attention. His evidence cannot be regarded as showing the terms or conditions
We have considered all questions presented in this case.
Affirmed.