34 Iowa 425 | Iowa | 1872
The defendant filed an answer at the September term, 1870, in which he expressly admitted the tender'of the deed for the lot in controversy, as averred
Upon the trial there was some conflict of evidence respecting the tender of the deed by the plaintiff, and the authority of the agent by whom the tender was made. the court instructed the jury that, in order for the plaintiff to recover, she must show by the evidence that she tendered the deed, before suit brought, by an authorized agent. In view of the pleadings and the oft repeated averment by defendant of bis tender, readiness to pay, and the bringing of the money into court, tbis instruction was erroneous. The plaintiff was entitled to recover the amount of the tender by defendant, at least. Phelps v. Kathron et ad., 30 Iowa, 231, and cases cited.
Tbe appellee’s counsel, whose abstract we accept as correct, raises a question as to tbe time and manner of excepting to tbe instruction. But if plaintiff’s counsel was too late in stating bis exception, which was after tbe jury bad retired, be has nevertheless properly availed himself of tbe same point by bis motion for a new trial
Reversed.