48 Iowa 511 | Iowa | 1878
Under these circumstances the objection came too late. If the machine was wrongfully taken and detained by the plaintiff, the defendant was entitled to damages, and it was the duty of the jury to assess the same, and judgment should have been rendered accordingly. Code, §§ 3238, 3239.
An objection to the sufficiency of a pleading cannot be raised for the first time by way of an instruction to the jury. Nollen v. Wisner, 11 Iowa, 191.
The objection should be made by motion, demurrer, reply, or in arrest of judgment. Code, § 2650.
II. It is next urged the verdict is against the evidence in this, that the jury assessed the value of the machine at one hundred dollars, and it is said the only testimony as to the value was that of the plaintiff, who stated as a witness it was worth nothing. The petition was under oath, and therein the plaintiff alleged the machine was worth three hundred and fifty dollars, and there was evidence as to the kind and condition thereof, and as to its rental value per year.
We are not prepared to say there was no evidence of value, or that the jury were bound to believe what the plaintiff stated as a. witness, and totally disregard what he had stated as to-the value of the machine ip the petition under oath.
Affirmed.