23 Iowa 296 | Iowa | 1867
The errors assigned relate to the instructions given at plaintiffs’ instance, refusing those asked by defendants, and the sufficiency of the evidence to warrant the verdict.
What object plaintiffs had in making the new contract is not- disclosed. Probably because cattle were declining and they desired some one to divide the loss with them. However this maybe, it is clear, that they waived the first contract and had no right to insist upon- its fulfillment. It is just as clear that they were liable with Gadsden & Co. jointly, but not as partners.
This being true, defendants could hold them liable in this action, for the damages .sustained for not receiving the cattle. That is to say, though others may have been jointly liable with them, defendants could recover their damages in this action against them. See the Law of set-off and counter claim. Bev. §§ 2886, 2889, 2764. Defendants could have sued plaintiffs on this contract, and if so, they could set up their counter claim and hold them for their refusal to receive, An.d within the rule recognized by a majority of this court in Ryerson v. Hendrie (22 Iowa, 480), this would be true, though the contract was made with the new parties as a partnership.
But without going to this extent we are satisfied — • thoroughly so — that they did not contract as partners; that the jury should have so found, and allowed defendants their damages. We do not stop to inquire what these were. They were allowed nothing, but plaintiffs recovered the whole amount of the money advanced, with interest, without the ieast deduction. This was error and the cause will be remanded for a new trial.
Beversed.