99 Iowa 189 | Iowa | 1896
I. This is the second appeal in this case. See 82 Iowa, 243 (48 N. W. Rep. 77). While the motions which were sustained by the district court embraced many distinct grounds, we think they may all be disposed of by the determination of one question, which is of controlling importance in the case. It is to be remembered that this is not an action to recover fora personal injury; nor is it an action to set aside a contract of settlement made, and to restore the plaintiff to his original rights, because of fraud practiced upon him, which induced a settlement; nor is it sought to reform the contract of settlement as not expressing the real agreement of the parties. It is an ordinary suit upon an alleged oral contract for damages, for a failure on thb part of the defendant to perform its alleged agreement. The alleged oral agreement is denied. Defendant pleads a written agreement of settlement. Plaintiff, in reply, deniés signing the paper, but pleads facts showing he did sign it by reason of fraudulent representations. On cross-examination plaintiff admits signing the agreement pleaded by the defendant. The written agreement, though pleaded by the defendant, and offered on the trial to the plaintiff, was not introduced in evidence. It will be seen that plaintiff is not attempting to show that the real consideration of the written contract is other or different from what is recited therein. He seeks to recover on an oral undertaking, pleaded as being separate and distinct; an undertaking which differs from the written contract only in that it