88 Iowa 736 | Iowa | 1893
I. The ease was tried as in equity, and is before us upon abstracts and a full transcript. The appellants in their opening argument, ask that if it is held that they were not entitled to a jury trial, we consider the ease de novo. The appellees replied, in argument, that the appellants, having appealed upon this assignment of error, waived the right to trial de novo. The appellants, in their argument in reply, withdraw their assignment of error, and ask that the ease be tried upon its merits. The case havingbeen tried below as in equity, and fully argued upon its merits before us, we conclude that, under the record, we should try it de novo, without, however, determining whether the assignment of error waived the right to such a trial.
II. The single issue presented is whether said receipt of W. T. Moorman is for nine dollars and fifty cents, or nine hundred and fifty dollars. The appellants contend that the receipt is clear and unequivocal in its language, and that its exact language is “$9:50 dollars.” They contend that, by the reference made in the will to this receipt, it is made a part of the will, and governed by the same rules as to evidence; that, under the rule, parol evidence is inadmissible to change the language of a will, and that the court erred in admitting parol evidence introduced for
The plaintiffs introduced evidence showing the declarations of the defendant W. T. Moorman with respect to the amount named in said receipt, to which no objection appears to have been made. The case being before us for trial de novo, we will consider all objections made by the appellants to evidence offered by the appellees, and, if we find the objections well taken, will exclude the evidence from consideration; but, if the evidence has been admitted without objection on the trial below, the appellants will not be heard to object on this appeal. Conceding that the law is as claimed by appellants,- — a question we do not determine,— it is clear from the record that the evidence as to defendant W. T. Moor-man’s declarations must be considered on this appeal, because admitted without objection. Lee v. Percival, 85 Iowa, 639.
As already stated, the appellants’ contention is, that, the receipt being a part of the will, parol evidence is hot admissible to change its language, and that its language is, clearly, ‘‘$9:50 dollars.” We have the original receipt before us, and our inspection of it does not lead us to the conclusion that it is "clear and unequivocal in its language.” It was evidently Written in blank, as to the amount, and the dollar mark and figures, 950, inserted in a different hand. The only ground for claiming, from the face of the receipt, that it is for nine dollars and fifty cents is the fact that two dots are found between the figures 9 and 5, which are claimed to be decimal points. It is probable that they were so intended, but the fact that nothing appears between the figures and the word "dollars” renders it questionable whether they were intended to indicate nine dollars and fifty cents as the amount of the receipt. Whether the language of the receipt is so obscure as to the amount as to admit parol evidence, we do not need to determine, as, for reasons already stated, the evidence of the declarations of the defendant W. T. Moorman must be considered on this appeal.
III. It only remains for us to determine whether, under the evidence admitted without objection, the receipt in question should be held to be for nine hundred and fifty dollars, or for nine dollars and fifty cents. It is unnecessary that we here discuss this evidence in detail. It is sufficient to say that from the receipt itself, the circumstances under which, and the purpose for which, it was given, and the evidence as to the declarations of the defendant W. T, Moorman, we think it fully and fairly appears
