| Iowa | May 20, 1903
On the 19th day of September, 1899, the plaintiffs, who were then live stock dealers doing business in South Omaha, Neb., sold to J. M. Tucker, of Shelby county, Iowa, one hundred and twelve head of young cattle for an agreed sum; taking his note for the larger part of the purchase price, and, as security therefor, a mortgage back on the cattle. This stock was delivered to Tucker, and shipped to Harlan, Iowa, where it arrived and was unloaded and placed in the railroad stockyards on the 20th of the same month. The next day the defendant bargained for thirty head of cattle .then in said yards and belonging to the said Tucker, and they were delivered to him at his farm on the day following. The plaintiffs’ mortgage was recorded after the cattle were bargained for by the defendant, but before they were delivered to him, and before he had paid any part of their purchase price. It is also undisputed that the defendant had actual knowledge that there was a mortgage on the cattle before he paid for them. As we view the case, however, it is not
The jury found specially that the plaintiffs gave Tucker permission to sell the cattle, as claimed, and knew that they were to be sold by him as soon as possible.These special findings are so supported by the evidence that we cannot disturb them; and they are decisive of the case, regardless of the effect to be given the mortgage, or any notice thereof which may have been received by the’ defendant. What we have said as. to the competency of the testimony as to the real agreement between the plaintiff and Tucker answers the appellants’ contention as to the latter part of instruction four given by the court, which told the jury that it might consider prior and subsequent transactions between the plaintiffs and Tucker as an aid to their determination of the real contract of September 19th. It is suggested in argument that, if there was a waiver of the mortgage lien, it was without consideration and of no effect. But if it was a part of . the original
The court’s statement of the issues. was longer than was necessary, perhaps, but there is no indication that it was not fully understood bj thejury.-
There was no error in permitting the several' amend-méhts to the answer. The trial court may exercise a wide discretion in such matters, in the-interest of justice, without interference, unless it clearly appears that such discretion has been abused.
Complaint is made because the special interrogatories asked by the plaintiffs were not given. There is nothing in this, however, for the reason that all material matter contained in those asked was covered in the twenty special questions asked by the court.
The cross-examination of Tucker, who was used by the defendant as a witness, showed that he had left Iowa soon after the sale of the cattle to the defendant, and had •thereafter been living in Wyoming. The plaintiffs then asked him if he was living there under an assumed name, ani if he had not been brought back to Iowa to answer to the charge of selling the mortgaged cattle in controversy. Whether or. not he assumed a different name in his new home was manifestly immaterial. His answer to the other question might properly have been received, as affecting his credibility as a witness — the transactions being the same — but we will not reverse because of the ruling. If his ans.wer had been in the affirmative, it is more than probable that it would have conveyed no new information to the jury, for if then under indictment as claimed and then in custody awaiting a criminal prosecution for the crime, it is almost certain that such facts were known to every,juryman in the box.
The judgment is aefiRmed.