101 Iowa 88 | Iowa | 1897
I. Evidence was introduced, over defendants’ objections, tending to show the rental value of the building. It is said that the witnesses were incompetent to prove value, and that such testimony was irrelevant and immaterial. • The court, in its instructions, took this evidence away from the jury, and consequently we are not required to consider the matter.
Y. In the seventh instruction the court told the jury that it was necessary for plaintiffs to take reasonable precautions to save themselves from loss or injury after they knew of the defective condition of the apparatus, but also said that “if they found from the evidence that the defendants, from time to time, promised that .they would remedy the defects, if any, in the heating apparatus, so as to make the thing work properly, and that plaintiffs relied upon these promises in good faith, then plaintiffs would be regarded as having used due diligence.” This qualifying clause is complained of, not because it does not state a correct proposition of law, but for the reason that there is no evidence to support it. This point is based, as it seems to us, on a misapprenhension of the record. There is evidence from which the jury may have found promises to repair and to remedy the defect, down to the- very day on which the apparatus was removed, which was about the middle of January, 1804. True, much of the damage to plaintiffs accrued after the removal of the apparatus from the building; but the
YII. Complaint is made of the ruling of the court in rejecting the testimony of witness Bunce, offered on behalf of appellants. The evidence was objectionable because it placed the witness not only in the attitude of the court, but also allowed him to assume the role of a juror. He was asked not only to construe the contract, but to say whether the apparatus was of sufficient capacity to properly heat the building. Clearly, such evidence was not admissible. This witness was allowed to state everything he knew material to the controversy, and to give his opinion as to the cause of unsatisfactory results. This was all defendants were entitled to.