McIntosh v. Lee

57 Iowa 356 | Iowa | 1881

Day, J.

i. riEADMs: juáio&íno I. The plaintiff testified that the lease was not executed on Sunday, and that after the delivery of the lease the defendant entered upon possession of the premises, and cultivated them one year. No other evidence was introduced. To the testimony that tlie lease was not executed on Sunday the defendant objected as incompetent, for the reason that no issue of that kind is presented in the pleadings, and the evidence tends to vary the terms of a written contract. The court made no ruling upon the objection, but, upon the submission of the cause, rendered judgment for the defendant. The petition alleges that the defendant entered into the written lease in question on the 10th day of March, 1878. Courts take judicial notice that the 10th day of March, 1878, was Sunday. The petition, therefore, in effect alleges that the lease was executed on Sunday, The answer alleges the same thing. Notwithstanding this allegation of the pleadings, the plaintiff seeks to have the court consider his testimony that the lease was.not executed on Sunday.

If the plaintiff had alleged that the lease, although bearing the date of March 10th, 1878, was not in fact executed upon that day, it might have been competent to prove upon what da}*- the lease was executed. But under a petition alleging that it was executed on the day it bears date, it was not competent to prove that it was executed upon a different date.

2. lease: tionóí. II. It is claimed that whilst the petition does not in terms allege a subsequent ratification of the contract, yet it alleges facts which, under a liberal construction, show a ratification. We think the petition does not allege a ratification of the lease. It does not expressly allege that the defendant entered upon and occupied the premises, except as implied from the allegation that he abandoned them. But something more than mere occupation of the premises would be necessary to the ratification of the lease. That might render the tenant liable under an implied promise for the quantum meruit, but not for the rent stipulated in the lease according to its terms. To that end some new promise to perform the terms of the lease, or something equivalent thereto, is necessary.

s. damages ; practice. III. There is another reason why the judgment in this case cannot be reversed. The first part of the answer tenders no issue upon any allegation of fact in the petition, Mann v. Howe, 9 Iowa, 546. “Every material allegation of the pleading not controverted by a subsequent pleading, shall, for the purpose of the action, be deemed true.” Code, section 2712. “ But an allegation of value, or amount of damage, shall not be deemed true by a failure to controvert it.” Id.

The allegation, therefore, that the plaintiff is damaged sixty dollars on account of a failure to do the breaking, and five hundred dollars on account of the abandonment of the premises, is not admitted by a failure to deny it.

The plaintiff introduced no proof of the amount of his damages, and was, therefore, at the most, entitled to a judgment for but nominal damages.

We have held that we will not reverse a case and order a new trial for a failure to assess mere nominal damages. Watson v. Van Meter, 43 Iowa, 76.

The judgment is

Affirmed.