23 Iowa 394 | Iowa | 1867
The evidence under-which this case was put to the jury, shows the general features of the same, upon the facts, to be about as follows :
The defendant owned a large farm under one inclosure without division fences, a part of which he occupied and cultivated. Forty-nine acres thereof, more or less, he rented to plaintiff, who cultivated the same in corn, and was to have therefor two-thirds of the crop, and the defendant one-third. The crop was an average one for that year, say thirty-five bushels to the acre, worth from thirty to forty cents per bushel. These figures would make the aggregate crop 1715 bushels, and the plaintiff’s share 1143 bushels, but he was able to gather and save only 419 bushels. The balance of the crop was destroyed
The jury in their verdict awarded plaintiff $177.43; the residue of plaintiff’s loss was applied, it may be, on the defendant’s set-off, or as the defendant’s set-off was not very well established, it is not improbable that the verdict was thus reduced below the actual damage on account of trespass committed by animals other than the defendant’s.
At the trial, the plaintiff and defendant both gave evidence.
The former testified, in substance, that in August, about roasting-ear-time, the defendant turned into the corn his colts, calves and sheep; a little later he turned in some seventeen or eighteen fattening hogs and some shoats; afterward his horses and cattle; plaintiff counted sixty-four head of defendant’s stock in at one time. He remonstrated against this, defendant confessed he had turned them in, that he wanted them well filled, that he did not want to wrong any man, and would pay for it, etc. It was in evidence that other stock was in for a short time, on account of the insufficiency of the fence, which the plaintiff, declared, under the contract, the defendant was to keep in repair.
The defendant’s testimony was very brief. He said when he leased the ground to the plaintiff, nothing was said about the fences. He loaned the plaintiff twenty-five dollars, which he had not paid; stated some other matters about his set-off, but did not deny or controvert in his testimony the facts testified to by plaintiff in regard to turning in his stock upon the plaintiff’s corn and destroying the same, nor does the other testimony change the essential character of these facts. Which of the par
As to the fourth and sixth instructions, a state of case might arise where the same would become good law, but
Affirmed.