3 Iowa 88 | Iowa | 1856
The plaintiff claims of defendant $92.50, and alleges, tbat he lost money to the amount of $199.50 ; that defendant found the same, wholly disregarded the law concerning lost goods, money, &c., and so carelessly and negligently dealt with, and managed said money, that $92.50 thereof were totally lost, and have never been paid to plaintiff. The defendant takes issue on all the allegations of the petition. On the trial, one Henderson, a witness called by the plaintiff, testified that about the 19 th. of December, 1854, the defendant came to his office, and informed him, that he (defendant) had found money over one of the windows of a certain house. Witness suggested to call in the prosecuting attorney of the county, and advise with him. This was done. They then advised defendant to bring the money to the office, and that it should be marked. Defendant got the money, and they marked it, and defendant took it away with him, and was to put it in the same place where he found it. This is all the evidence shown in the case. On cross-examination, the defendant’s counsel asked the witness to state what Posegate had said, in other conversations, about his putting tbe money back in the same place, and whether he watched the same or not. To which question the plaintiff objected, and the court sustained the objection.
This is the foundation of the first assignment of errors. This testimony is claimed to be admissible under section 2399 of the Code, the concluding clause of which provides, that “when a detached act, declaration, conversation, or writing, is given in evidence, any other act, declaration, or writing, which is necessary to make it fully understood, or to explain the same, may also be given in evidence.” While we fully appreciate the wisdom of this provision, a majority of the court, at least, cannot deem it applicable, in the case at bar; and conclude, therefore, that the testimony
The other supposed errors rest upon the instructions. The court, on its own motion, instructed the jury that only slight diligence was required of the defendant, in the care of the money; and that he was answerable for gross negligence only. The defendant asked the same charge, but it was coupled with qualifications, or with other ideas, rendering it, at least, more obscure. The court refused to give it. If the
Objection is also made by defendant, to the first and second instructions given at the request of the plaintiff. The first is, that if the defendant found the plaintiff’s money, and by carelessness the same, or any part thereof, is lost by defendant, he is liable for the portion lost. It is true that the word “carelessness,” is not a legal term; but it must be taken as equivalent to negligence, from which it does not greatly differ in ordinary acceptation. As to the degree of this necessary to charge the defendant, the court explicitly instructed the jury, as we have seen above.
The second instruction is, that if defendant found plaintiff’s money, knowing the same to be plaintiff’s, he was bound to make restitution of the same, without compensation. This is the provision of the act, and is correct. See Statute of 1852-3, 166. The idea of this instruction is not, that he is bound to make restitution at all events; but it is, that he shall do it without compensation; that is, be cannot make and recover a charge. The objection to this instruction is rather airy, and we are not sure that we perceive its point. But if it be not the above, then it is that the court did not instruct that defendant might take compensation, if given voluntarily. If this be it, we hardly think it required an instruction below, or the attention of this court. These are all the points presented to the court, and there is no error in them.
Judgment affirmed.