154 Iowa 49 | Iowa | 1912
There was no controversy as to the validity of the eight promissory notes held by plaintiff against defendants described in plaintiff’s substituted petition filed as a result of the stipulation consolidating the three actions.
The questions Submitted to the jury' were wholly as to various credits which defendants claimed should have been made on said notes and on defendants’ counterclaim for the recovery of payments made to or credits allowed by plaintiff in excess of the amount due on said notes. On both branches of the case the burden was on the defendants.
I. Defendants claim credit for $1,800, the purchase price of ninety-four head of cattle at $20 per head, alleged to have been sold by defendants to plaintiff, and for twelve acres of millet of the reasonable market value of $200, also alleged to have been sold and delivered by defendants to plaintiff, and consumed in the feeding of said cattle. With reference to these items the plaintiff denied any contract of sale, and introduced evidence tending to show that the only credit to which defendants were entitled with reference to the cattle was $886, the amount for which the cattle had been actually sold by defendants, the proceeds of such sale having been turned over to plaintiff.
If the jury followed these instructions, as we must presume it did, the credits properly made by plaintiff upon the notes not in suit were entirely disregarded, and they were again credited to defendants upon the notes which were involved in the action. The error of the court was in assuming or in permitting the jury to assume that the $886 which plaintiff admitted it had received from defendants was credited by it upon the notes in suit, where as the major part of it was properly credited upon notes not in suit.
Appellees seek to justify the instruction upon two theories:
First. Upon a stipulation filed in the case which it is claimed narrowed the issues down to credits upon the notes in suit, instead of all the notes held by plaintiff against the defendants. ' The stipulation as we read it did not so limit the issues. It is not necessary to set it out; for it did not limit the issues tendered by the plead
Again, there were some other notes held by plaintiff which we have not hitherto referred to amounting to $200. Adding these with interest on all the notes to the principal sum, there might under the testimony have been a 'verdict for the plaintiff for something like $150. It is not necessary in this connection to say that this should have been the verdict. It is enough to show that under proper instructions there might have been a verdict for the plaintiff. Defendants are here laboring under the heavy burden of showing that under the undisputed facts as applied to proper instructions the verdict could not have been other than was returned. That they have not met this burden is apparent.
For the error pointed out the judgment must be, and it is, reversed.