84 Iowa 728 | Iowa | 1891
Lead Opinion
I. A principal ground of complaint by the appellant is based upon the action of the district •court in giving certain instructions involving an issue not presented by the pleadings, and in admitting evidence for its support. The execution and delivery of the note were admitted by the answer, and a total failure of consideration pleaded, as to which the court said to the jury:
“The defendant says that the consideration for said note was the purchase by the defendant Wright of1. Pleading: evidence: instructions. the not for twenty thousand dollars, which has been introduced in evidence as Exhibit 0, and the .chattel mortgage securing the same; that therefor the said Wright was to pay the sum of one thousand dollars in cash, and was to give his notes, one for the sum of three thousand dollars and one for two thousand dollars; that the said Wright paid the sum of one thousand dollars in cash, and that he executed and delivered to the said George Glick the two notes, the one for two thousand dollars being the one in suit in this action; that the consideration for said notes and money was the delivery to the said Wright of the said twenty thousand dollar note and mortgage, and that the said Glick wholly failed and refused to deliver to said Wright the said twenty thousand dollar note and mortgage, and that by reason thereof the consideration •of the note sued upon in this action has wholly failed.”
No reply was filed, and the issues of fact for trial arose on the answer, and a denial by operation of law. Code, sec. 2712. The court said to the jury:
“The burden of this issue is upon the defendants, and they must establish by a preponderance of the testimony in the case that the contract between the said George Glick and the said A. W. Wright was for the delivery of the said twenty thousand dollar note, and*730 assignment of the mortgage securing the same, within a short time after the making of such contract. If the defendants have so proven, you should return your verdict for them, unless you should further find that the plaintiff has shown by a preponderance of the testimony on that subject that the twenty thousand dollar note and the assignment of the mortgage securing the same were afterwards accepted by the said A. W. Wright, or that such failure of consideration, if you so find there was such failure, was waived by the defendant A. W. Wright, as hereinafter explained in these instructions.”
The explanation to the latter clause of the instruction is as follows:
“If you find from the testimony before you that the firm of Cummins & Wright, attorneys, with the authority of the defendant A. W. Wright, offered to pay the note in suit if said twenty.thousand dollar note and mortgage securing the same were transferred to the defendant Wright; and you further find that the plaintiff, or the said Greorge Grlick, did deliver to said A. W. Wright or to his duly-authorized agent the said twenty thousand dollar noto and mortgage; and you further find that said twenty thousand dollar note and mortgage were accepted by the said Cummins & Wright for the said A. W. Wright, then in that case such facts being found you are instructed that such acceptance would be a waiver of any breach of the original contract, and the plaintiff would be entitled to recover in this action.”
It will be observed that the instructions recognized a condition of the testimony under which the jury may find, on the part of the plaintiff’s assignor (Grlick), a “breach of the-original contract,” which would be a finding of a failure of consideration. The instructions authorize the jury, after finding such fact, to avoid its legal effect by a finding that, after the original breach, there was such a delivery and acceptance as amounted,
II. At the conclusion of the defendant’s direct evidence, the plaintiff moved the court to direct a
These considerations seem conclusive as to the error of the district court, and its judgment must be REVERSED.
Rehearing
UPON REHEARING.
On an application for a rehearing, the correctness of the holding in the second division of