88 Iowa 215 | Iowa | 1893
The plaintiff sues on two promissory notes. The defendant admits the execution of the notes, and denies that there is anything due thereon; avers that said notes, with another,' were given for a cornsheller purchased by the defendant; that the sum represented by all three of said notes was agreed upon as the purchase price of said sheller, and upon the further consideration that the firm of Harris & Anderson should furnish the defendant corn to shell, sufficient each year to pay the amount due upon each note; that the defendant, as a part of said contract, was to receive the sum of two cents per bushel for shelling said corn, and that all of the same was a part of the contract of purchase, and part of the consideration for said notes, and that the plaintiff, as a party to such contract, consented thereto, and accepted the notes upon said condition. It was further agreed that said firm of Harris & Anderson should deduct from the amount of shelling done by the defendant the amount due the plaintiff on the notes. Under said contract, the defendant, about December 18,1889, as ordered by Harris & Anderson, went to Parnell to shell, and was then instructed to wait until after the holidays, which he did. The defendant, at all times until February 6, 1889, offered to comply with his contract, but was refused an opportunity of shelling at the price agreed upon. The plaintiff failed to comply with its contract, and on February 4, by its agent, ordered the defendant to return the sheller, which he did, and rescinded the sale, and demanded his notes. The defendant also pleads three counterclaims, the first based upon the facts above stated; the second being a claim on the attachment bond for damages for the wrongful suing out of the attachment; and the third demanding that the third note be delivered up and canceled. The plaintiffs, replying, admit that the three notes constituted the consideration for the sheller,
IY. Complaint is made that the court erred in giving certain instructions, and that the instructions-are conflicting, and that the jury were not sufficiently instructed as to all the issue's in the case. The third instruction asked by the defendant, and given, was-erroneous; but in view of other instructions given and the findings of the jury, the plaintiff was not prejudiced. While it would have been better if the court
V. As the verdict and judgment were excessive to-the extent of fifty-eight dollars, it is ordered that the judgment below be reduced to the sum of twelve dollars and, as thus modified, it be arrirmed.