22 Iowa 504 | Iowa | 1867
That this was error we entertain no doubt. Counsel had no more right to thus use this testimony, than though it had been taken in some other case between different parties. If he had offered it- as evidence, it is clear that, it would not have been admissible, except to contradict or impeach, and not then, until the proper foundation was laid, and the reading of it as a.part of the argument, so styled, after, all opportunity for explanation had passed, was even more objectionable. Such a practice would overturn all rules governing the admission of testimony; for any and every thing could, upon the same principle, be read as argument, and yet have all the weight and influence of evidence. Or, if not such weight, there is thereby thrown into the jury box, improperly and irregularly, matters with which they have nothing to do; which can only tend to confuse and mislead, and that to the manifest prejudice of parties.
The only doubt as to this part of the case grows out of the suggestion that, as the jury were instructed not to “ consider any thing read from the minutes of the evidence at the former trial,” therefore the error is one without
While defendant had the right to assign the contract to McPherson, and while such assignment might carry to the assignee the rights of the assignor, it would by no means follow' therefrom that plaintiff was bound to ■ look to McPherson for his pay. In other words it would not be true that plaintiff was thereby bound to “ look to said assignee in all respects, and upon precisely
If plaintiff delivered the cattle to McPherson, or his agent, at defendant’s request, then this was a delivery to defendant, and he would be liable. If plaintiff released defendant and accepted McPherson as his debtor, or agreed to look to him for his pay, then he cannot recover. Or, if he was only to surrender the cattle to McPherson when he received his pay from him, and in violation of defendant’s instruction in this respect, parted with his cattle, then the loss, if any, should fall upon plaintiff, and not on defendant. If, however, he was to deliver the cattle to McPherson, and nothing was said as to payment, then, in absence of fraud or collusion, plaintiff might so deliver without payment, and look to defendant for his money; or, in other words, if defendant assigned the contract to McPherson, and directed plaintiff to deliver fhe cattle to such assignee, the plaintiff was not bound to hold them until they were paid for, but, in the absence of instructions to hold until payment, plaintiff might deliver to the assignee and hold defendant liable. Plaintiff had a right to presume that defendant had protected himself or properly guarded his own rights; and, in the absence of instructions to the contrary, a delivery without prepayment would not discharge defendant.
Plaintiff was also bound to deliver the cattle according to his contract. If, however, the mode, time or place was changed with the defendant’s consent, then a delivery accordingly would bind defendant the same as a compliance with the original contract. An arrangement, however, between plaintiff and McPherson, as to the time and place of delivery, prejudicial to defendant’s interest,
With this brief exposition of the law governing this controversy, there should reasonably he no ■ trouble on the retrial. Because the court erred in the matter first discussed in this opinion, the judgment below is reversed and the cause remanded.
Reversed,