184 Iowa 773 | Iowa | 1918
Lead Opinion
It is pleaded that no suit was brought upon the claim for which plaintiff seeks to recover, and no judgment was ever entered in any suit against the plaintiff, nor has any judgment been paid by it. This allegation is admitted, but is met by a reply that “the defendant did waive its right to insist upon a compliance by this plaintiff” with said contract provision.
3a
It is elementary that the position of the appellee is well taken if the appellant made explicit and unqualified denial of all liability. Washburn-Halligan Coffee Co. v. Mer
3b
But this general agent testified he did not know that this pleading contained this particular paragraph or any like allegation, until long after the pleading was filed. We have no disposition to deny that the admissibility of the pleading rests upon the theory that it is an admission against interest, and that no admission is binding unless the same be understandingly made. Nor do we overlook Schaeffer v. Anchor M. F. Ins. Co., 113 Iowa 652 and 133 Iowa 205, followed, in effect, in Corbin v. McAllister, 144 Iowa 71, 79: These hold that this presumption of authority is but a fact argument, and that, where there is undisputed affirmative testimony that there was no authority, then the admission in such pleading does not go to the jury. In other words, these cases hold that, where a mere inference of fact is met by undisputed testimony that the facts are contrary to the inference, there is no conflict for a jury between such inference and such affirmative testimony. Now, in the Schaeffer case, the affirmative testimony was not disputed. The admission which was repudiated conceded away the cause of the plaintiff; and the claim that the filing was due to mistake, and was without authority, was proved almost to a demonstration, because the testimony that there was such mistake and such lack of authority was corroborated by the fact that otherwise we must have held that the plaintiff deliberately and knowingly authorized a pleading which destroyed the case of the party filing such pleading. Just the opposite is the situation here. The defendant began by a statement that it was under no liability. The answer that was filed on its behalf was not an admission destroying its case, but was in harmony with said position in its own defense and for its own advantage that it had taken from the beginning. In one word, unlike the situation in the Schaeffer case, the testimony that the answer was filed without
3c
As we understand it, there is no contention That the settlement made by the plaintiff was improvident.' And with the agreement to make judgment upon contest a condition precedent waived, there is no reason left why the defendant should not reimburse the plaintiff.
It follows that the judgment of the trial court must be’ ■ — Affirmed.
Rehearing
Supplemental Opinion on Rehearing.
“The line of demarcation between repair work on one hand and construction work on the other is not always*782 easily discernible. Repair often, if not usually, involves more or less construction and substitution and likewise involves betterment and improvement. * * * The trend of the cases thus far decided indicates that labor and betterment upon an interstate line of railway will not be deemed as new construction work unless it is clearly such.”
Applying this to the evidence, we cannot say that the verdict which involves a finding that the work done by Pickett was not an alteration is so utterly lacking in support as that it must be set aside.
II. The remaining complaint is presented as follows: In a point “relied on for reversal,” it is said:
6. Insurance: “repair” and “new construction.” “The court erred in failing to construe the contract or policy, and to define the words ‘alteration’ and ‘ordinary repairs and maintenance,’ as used in said policy, as requested by defendant in its third requested instruction.”
This is not a claim that there was error because said-words were not construed at all, and should have been construed in some manner, but is an insistence that the, right definition was offered by defendant, and that no equally correct definition was given. In the petition for rehearing, this complaint seems to be broadened; for it is there said that, “if the question aforesaid was submitted to the jury, it was the duty of the court to instruct the jury as to. the meaning of the words.” Brief Point 6, the only one on the proposition, is as follows:
“It is the province of the court to construe a contract, and give the meaning of the terms used therein; and the court should have construed and defined the terms ‘alteration’ and ‘ordinary repairs and maintenance,’ as requested by the defendant.”
In our opinion, the sole question presented at this point is whether the court should have given Instruction 8, offered by the defendant. In it, “alteration” was defined to
What has been said concerning a presumption that work is repair, rather than alteration, applies as well on the question whether the definition offered by the defendant is the correct one.
We are of opinion that the instruction offered by the defendant did not state the law, and was, therefore, rightly refused. It follows that the petition for rehearing should be overruled.