38 Iowa 325 | Iowa | 1874
Lead Opinion
— I. At the trial the plaintiff introduced in evidence the receipt for collection, executed by defendants to the plaintiff, which contained also a copy of the note in question, and rested.
The defendants then admitted that they received the goods, etc., in payment, and gave up the note to Yalentine the maker. One of defendants then testified that “shortly after the receipt of the goods * * * Yalentine was adjudged a bankrupt; that defendants were sued in the United States District Court, and a judgment was rendered against them for one hundred and fifty dollars debt, and forty-two dollars and eighty-five cents costs; the suit being for the recovery of the amount of goods given by said Yalentine to secure defendants in payment of said note.” To all this the plaintiff objected because “the record of the proceedings of the court are the best evidence, and cannot use parol evidence to ptove a- record.” The objection was sustained, and the evidence excluded.
Much of the testimony thus excluded was - incompetent for the reason stated in the objection; but it was not all so incompetent. The defendants might properly identify themselves as being the defendants in the action in the United States Court, and it was also competent for them to prove, by parol, that the goods for which the recovery was had in that court were the identical goods they had received from Yalentine, upon the note they held for collection. It was error therefore to exclude all that testimony.
II. The defendants then asked leave to introduce the receipt of George D. Wood, assignee of the estate of Yalentine, the
The fact that these two items of evidence did not constitute an entire or complete defense, cannot now avail the plaintiff. He did not object to the evidence on that ground, nor urge that reason helow. And further than this, a party has the right to introduce his testimony, item by item, and he need not offer it all at once; and when competent evidence is rejected he may rely upon such error. Besides, there is nothing in the abstract in this case to show that we have all the evidence before us. There is simply “ an agreed statement of facts in evidence” showing the points we have considered. To affirm the judgment, notwithstanding these errors, on the ground that the evidence before us does not show a complete defense, would be to disregard all precedent, and probably effectuate a grievous wrong.
III. The commencement of the suit was a sufficient demand, Johnson v. Semple, 31 Iowa, 52. There is nothing to show that interest was allowed before that time. If the defendants had no authority to receive the goods in payment, they would
Reversed.
Dissenting Opinion
dissenting. — I regret that I cannot concur in the foregoing conclusion of my brothers. The action of the court in rejecting the testimony referred to in the first division of the majority opinion, was not assigned as error, nor distinctly urged as such in the argument, and should, as we have frequently held, be disregarded.
Without competent evidence of the bankruptcy proceedings, and of the recovery of a judgment against the defendants the receipt of the assignee, and the copy of the summons by the United States, were entirely immaterial, and if they had been objected to on the ground of immateriality, there can, it seems to me, be no question that the objection should have been sustained. But if they were immaterial, their exclusion worked no prejudice, and we should not reverse for the mere technical error of placing the rejection upon an improper ground. As I view the case, if this evidence had been admitted, it could not have affected the result. The material matters in support of the defense are, that Valentine was declared a bankrupt, that an assignee was appointed, and that this assignee recovered judgment against defendants for the value of the property received by them in payment of the note. These facts established, the defense is complete, without showing actual payment to the assignee; for the incurring of absolute liability to another, by judgment of a competent court, exonerates defendants from liability to plaintiff. But, without showing these facts, proof of payment to the assignee would be altogether unavailing, because not shown to be authorized. For until the appointment of the assignee is properly shown, he stands to the record as a mere third party, and payment to him would be no more efficient than payment to any other person. If, therefore, defendants introduced proper proof of the bankruptcy proceedings, the appointment of the assignee and the recovery of the judgment, the evidence considered in the second branch of the foregoing opinion was
Bevbrsed.
