5 Iowa 472 | Iowa | 1858
This judgment must be affirmed. Two considerations sufficiently justify this conclusion. The plaintiff complains of certain instructions which he alleges were given, and also of the refusal of the court to give certain ones asked by him. The bill of exceptions states, that plaintiff introduced a witness and proved certain facts, (which are set out), and that “the court charged as on file, to which the plaintiff excepted, and asked the court to instruct as in paper on file, which was refused, and plaintiff again excepted.” Beyond this, there is nothing to identify the instructions given and refused. We find in another part of the record, what purports to be instructions, but they are signed by no person, nor is there anything to show that these are the instructions referred to in the bill of exceptions. It has been too frequently settled, that this method of refering to papers and instructions, is insufficient, to now admit of doubt. Herring v. The State, 1 Iowa, 205; Ewing v. Scott et al, 2 Iowa, 447, and the cases there cited.
But as counsel for appellee does not insist upon this objection, we deem it proper to state one other ground, uj>on which we are equally well satisfied in affirming the judgment below. It seems that plaintiff is seeking to recover for certain work and labor performed by him, for the defendant. It is insisted that if he did work for defendant which was of some value to him, he is entitled to recover such value, though the work was done under a special contract, deducting from such value, all damages sustained by defendant, on account of the violation of the undertaking of plaintiff. To this, it may be answered, that the transcript of the justice, contains nothing from which we can learn the nature of the plaintiff’s action. Whether he sued upon a special contract, or to recover what his services were reasonably worth, no where appears.
Whether the position of plaintiff would be correct, if it appeared that he sought to recover the reasonable value of his services, we are not called upon to determine. We will not presume a state of facts upon which, to find error. But, on the contrary, where the record is silent, and a state of case can be supposed, under which the action of the district court would be correct, we will adopt that conclusion which is consistent with the correctness of the ruling made. Mays v. Deaver, 1 Iowa, 216; Brewington v. Patton & Swan, Ib., 121; Conrad & Co. v. Baldwin, 3 Iowa, 207.
Judgment affirmed.