45 Iowa 622 | Iowa | 1877
This cause was submitted by counsel at the June term, 1874. From an oversight of the clerk it was not entered upon our submission dockets and therefore did not come into the hands of the court, and of course no decision therein could be made. It did not reach us until the present term, when it was entered upon our dockets and submitted for decision of the court.
I. The first point of the case we shall consider, involves the correctness of the ruling of • the court upon plaintiff’s demurrer to defendant’s answer.
The answer alleges no terms or conditions of the contract growing out of or dependent upon the custom recited, which the parties were not entirely competent to adopt. The.demurrer was properly overruled.
II. It is insisted that certain evidence was erroneously admitted. It tended to support the custom or usage pleaded by defendant in his answer, and his allegation that the contract under which the grain was received was made with reference thereto. It was properly admitted under the issues found upon the second count of defendant’s answer.
III. The instructions, in our opinion, fairly presented to the jury the issues raised by the pleadings and the rules necessary to reach a correct determination thereof. The issues of fact, as found, involved the terms of the contract made by the parties whether they were of the character claimed by plaintiff or as claimed.by defendant. The existence and effect of the usage or custom under which the contract was made were involved in this issue. If they were found as alleged by plaintiff, he was entitled to recover; if as set up in the answer, defendant should recover. It may be' that the issues could have been more clearly and directly presented to the jury than was done in the instructions given, but we think no ground exists foi; holding them prejudicially defective.
IY. It is insisted by plaintiff that the verdict is not supported by the evidence. We are of a different opinion. The jury, we think, were justified in finding the contract to be of the character alleged in defendant’s answer and the facts to be such as are therein pleaded.
Aebtrmed.