30 Iowa 554 | Iowa | 1870
Exceptions “ A ” and “ C ” are to the admission of testimony offered by defendant to show the character of plaintiff’s portion of a partition fence between the parties, and of evidence to show that plaintiff’s mules were breachy.
The plaintiff’s counsel in his argument insists that evidence of the character of plaintiff’s mules was entirely irrelevant. “ That the damage would not have been greater however bad the character of the mules; nor would it have been less had their character been good.” If this is correct then the plaintiff could not be injured by the admission of the evidence. It was error without prejudice and not ground for reversal.
There was no error in the admission of this evidence, nor in the refusal of the court to give the 15th instruction asked by plaintiff bearing on the same point.
“ The fact that defendant may be usually a peaceably disposed man, and may have a good reputation as such, is no justification for the assault upon plaintiff.” This the court gave to the jury with the following modification: “ But it may be considered by the jury in rebutting the presumption of malice, and in mitigation of vindictive or exemplary damages.”
In civil cases, evidence of general character is admissible, where the nature of the action involves the general
“ To Royal B. Quinton.
“ Sir : "While I do not admit that I am indebted to you in any sum by way of damages or otherwise, in the suit you brought against me in the court at Keokuk for an alleged assault and battery, yet, for the purpose of buying my peace and saving further trouble and litigation between us, I will pay you $50 and costs of suit, if you will agree to dismiss said suit and not prosecute me further therein.
(Signed) • “S. M. VAN TUYL.
“ January 30, 1869.”
Which said offer to compromise said Quinton declined to accept.
The court overruled said motion, and taxed all the costs against Van Tnyl, from which order he appeals.
The defendant insists that he was entitled to the benefits oí section 3405 of the Revision, which is as follows:
*550 “In an action for the recovery of money only, the defendant may, at any time after the service of notice, and before the trial, serve on the plaintiff or his attorney an offer, in wilting, to allow judgment to be rendered against him for the sum of money, or to the effect specified in the notice, and costs. If the offer is accepted by the plaintiff, and he give notice of his acceptance to the defendant or his attorney within five days after the offer is made, the notice, and an affidavit that the notice of acceptance was delivered within the time limited, may be filed by the plaintiff with the clerk, or the defendant may file the acceptance with a copy of the offer, verified by affidavit; the clerk in either case must enter the offer and acceptance upon the record, and judgment must be rendered by the court thereon accordingly. If the notice of acceptance is not given within the five days, the offer will be deemed withdrawn, and cannot be given in evidence or mentioned on the trial. If the plaintiff fails, upon a trial, to recover more than was offered by the defendant, he cannot recover costs, but must pay the defendant’s costs from the time of the offer.”
By this section of the statute a defendant may offer, in writing, to let judgment be rendered for such sum and costs accrued as he deems just. If the plaintiff accepts the offer, judgment is to be rendered for the amount of the offer and costs, thereby putting an end to the litigation between the parties. If the plaintiff refuses the offer and on a trial recovers a less sum, he must pay the costs, etc. This is a wise and just enactment, and the courts will give it effect whenever a case comes within its provisions. But there must be at least a substantial compliance by the party claiming the benefits of the law. In the case before us, the offer of defendant is not a compliance with the statute. The offer is to pay a sum of money and costs if the plaintiff will dismiss his action, etc. Had this offer been accepted, the plaintiff could have brought an action to compel payment. But this is not what the statute contem
Hence, it requires that the offer shall be “ to allow judgment to l>e rendered agcdnst hi/m!' for the sum named and costs, in the action then pending, with a view to put an end to the litigation between the parties. An offer in writing to pay in ease plaintiff will dismiss his suit is in no respect a compliance with the statute; nor is it equivalent to an offer to allow judgment to be rendered against him. The former, if accepted, is only a mere promise to pay money, involving an action to obtain a judgment thereon; the latter is the end of litigation which is contemplated by the statute, and, in order to obtain the benefits of the statute, the offer must be to allow judgment to be entered against the party making the offer for the amount he may name and costs accrued up to the time of making the offer.
The judgment of the district court on defendant’s appeal is affirmed, and on the plaintiff’s appeal it is reversed and a new trial ordered.
Reversed.