13 Iowa 500 | Iowa | 1862
There is one controlling fact in this case, that leads us to disfavor tbe somewhat technical objections of defendants to tbe ruling of tbe court, in refusing certain instructions asked, and in overruling tbe motion for a new trial. That is, tbe defendants received under their contract, in 1857, tbe sixteen two-borse, and tbe one one-borse wagon, and tbe buggy, property, according to tbe value placed thereon by plaintiffs witnesses, worth tbe sum of $1,460, and that could not at tbe time of delivery, according to tbe testimony of defendants’ witnesses, have been worth less than tbe sum of $1,050, and for which tbe plaintiff has to this day received but tbe sum of $800.
One position assumed by tbe defendants is, that tbe plaintiff, having declared specially upon tbe written contract, be cannot recover upon tbe additional count for tbe value of tbe property delivered, after it bad been made to appear that be bad failed to comply with tbe terms of tbe special contract. \The giving and refusing certain instructions by the court unfavorable to this position of defendants, is assigned as error.
Tbe counsel rely upon tbe ruling of this court, or rather tbe authorities cited by counsel in their briefs, as reported in tbe case of Eyser v. Weisgerber, 2 Iowa, 467, as tending to show tbe incorrectness of this ruling of tbe court.
Tbe court there held that when a party declares specially be must succeed upon bis special case, and cannot recover as upon tbe common counts; that where a party would recover for tbe reasonable value of services rendered or
The very fact that the defendants paid the amount due on the bond is strong evidence, to our minds, that the oral contract, as alleged, was made. If it had not been made, the defendants could have complied with their part of the original contract by an assignment and tender of the bond to plaintiff. And if the plaintiff permitted it to be forfeited, it was his loss, not defendants’.
We do not propose to follow further the points assumed by the counsel of appellant. We think the charge of the court fully and clearly presents the law as applicable to the case, to the jury. We see nothing from the whole of the evidence that would justify us in disturbing the verdict, even if it was for a much larger amount. There is some evidence tending to show that the wagons were not, in every respect, finished, and of the best quality, but the defendants
Affirmed.