86 Iowa 494 | Iowa | 1892
The appellant called one Murphy, who testified that he came to-the place where Mr. Warran was setting up the machine, and had a conversation with the appellant at a point some thirty feet distant from where Warran was at work, and then asked the appellant -if he had bought the machine, and he said, “No.” This statement was excluded on the appellees’ objection. The witness was further asked “What did Cary say to you in that conversation there, while they were putting up the machine?” to which the appellees’ objection was sustained. One Worthington testified that he was present when they were setting up the machine, and heard a conversation between the appellant and one Halleck, some thirty feet distant from the man at work on the machine. He was asked, “In that conversation, what did Cary say about the machine being there?” to which the appellees’ objection was sustained. “The contention of the appellant is that this is proper testimony because — first, it is part of the res gestee of the bringing and setting up of the machine upon his premises ; second, it is a part of the res gestee of the possession of said machine.” The appellant cites a number of authorities showing that, when such declarations form a part of the res gestae, they are admissible in evidence. These conversations took place several days after the time at which the arrangement was made, in pursuance of which the machine was brought to, and left upon the appellant’s premises, and there is no question but that there was a delivery of the machine to the appellant if there was a contract of sale as alleged. The contention is whether there was such a contract. The appellant cites the rule to be as follows: “To make the declarations a part of the res gestae, they
The appellant contends upon the authority of Taylor v. Lusk, 9 Iowa, 445, that his declarations sought to be proven were admissible. In that .case it is said: “The cases cited by the appellees are for the doctrine that the declarations of a person while in possession of personal property, explanatory of such possession, as, that he held it as the agent or for another, or in his own right, are admissible in evidence against the party claiming under him;” citing Ross v. Hayne, 3 G. Greene, 211. It is further said: “The cases all agree in holding, however, that the declarations must be made at the time of the possession, must be simply explanatory of it, and not in regard to the contract under which the possession is held.” The declarations of the defendant, sought to be proven by him in his own behalf, as stated by counsel, were “that he had not bought the machine; that he had just given Jackson the privilege of setting it up there as a sample machine, in order to show it to the people of the neighborhood.” Such declarations were not explanatory of the defendant’s possession, for he denies ever having had possession. They were not offered as evidence against a party claiming under him, and were in regard to the alleged contract. They were not within
One Timberlake, called by the appellees, testified to a conversation with the appellant concerning the machine in question at a time in June, 1886, when he sold him a Buckeye, Altman, Miller & Co. machine. The appellant complains that he was not permitted to show that the written order for the last named machine was in the handwriting of one Hall, and not of the witness Timberlake. Timberlake fixes the time of the conversation with the appellant concerning the appellees’ machine as being at the time when he “went there to sell him a machine.” That Hall may have filled the order was immaterial, and we think properly excluded.
The appellant complains of this instruction, because it did not tell the jury that, before the plaintiffs’ ■claim could be converted into a money demand, they must find that sometime had been agreed upon, either fixed or reasonable, for the execution of the notes, and that the time had expired before the commencement of the suit. The allegation is that the machine was to be paid for in cash orto be settled for by notes on delivery, and a demand for payment or notes and a refusal at any time after deliveiy made the plaintiffs’ claim a money demand,
■ In the fifth instruction the jury were told in effect that if the evidence failed to show that the machine wás delivered under the alleged agreement, ‘ ‘but does show that the defendant permitted said agent to place said machine upon his premises, to be used and exhibited by said agent as a sample machine, for the purpose of selling other machines, then plaintiffs cannot recover. The appellant contends that this is in effect saying to the jury that, unless the evidence shows that the machine was brought upon the premises to be used as a sample machine, the plaintiffs can recover. If alone, it might be so construed, but other instructions given as to what was necessary to entitle the appellees to recover, made plain what the plaintiffs must prove to support their claim.
We have considered all the rulings assigned as error that are urged in argument, and, failing to find any errors prejudicial to the appellant, the judgment of the district court is affirmed.