178 Iowa 608 | Iowa | 1916
“I further depose and say that, if the said Jacob Riepma were present, he would testify for the plaintiffs that the stallion in question was a reasonably sure foal getter and breeder, and that he acquired said knowledge from personal experience in having charge of said stallion and having stood the same for service in the due course of business during the seasons of 1912 and 1913; that said stallion, during the year of 1912, was the sire of approximately forty colts, and during the year of 1913, the said stallion sired a larger number of colts than during the previous year of 1912. The said Jacob Riepma will further testify that, before said note in suit was signed by' the defendants, the said defendant Van der Weide received from said Jacob Riepma the written pedigree of said horse, and a certificate issued by the Department of Animal Industry of the state of Iowa, showing that said horse had a side bone; and that we have no other witness by whom the facts set out in the above affidavit can be shown, and the said Jacob Riepma will be present at the next term of court.”
No other statements were made in the motion, save that Riepma was a eoplaintiff, and a material witness for plaintiff.
This motion was overruled, and of this, complaint is made. As already stated, the motion was made on the day the case was called for trial, and there is no showing as to why it was not filed on the second day of the term, save by inference, and no showing why it was not filed on March 6th, instead of March 8th. Code Sec. 3666 provides, in substance, that such a motion must be filed on the second day of the term, or as soon thereafter as it becomes certain that it will
III. The trial court gave the following instruction, with reference to the verdict to be returned:
“The court herewith submits to you three forms of verdict, one of which you will use when you have agreed upon a verdict. If you find for the plaintiff, and find that there .is any sum due on the note, — that is, if you find there was no warranty and you find the full face value of the note in favor of the plaintiff, or if you find that there was a warranty and you find that the damage sustained is less than the amount due on the .note, — then you will deduct such damage from the amount due on the note, and the difference will be the amount of your verdict in favor of the plaintiff, which difference you will write in the blank space left therefor in verdict No. 1. If you find for the defend*612 ants, and find that there was a warranty, and you find damages for Van der Weide in any sum greater than the amount due on the note, then use verdict No. 2, writing in the difference as you find it, in the blank space left therefor. If you find there was a warranty, and you find that the damage sustained was equal to the amount due on the note, that is, if you find the two sums equal, then use verdict No. 3. The verdict agreed upon, have your foreman sign, and return into court therewith. ’ ’
And in addition thereto, at the request of the jury, the court gave the following:
“You will at all times in making up your verdict bear in mind that the note in question is admitted by the defendants, and, as you have been told, the plaintiffs are entitled to recover the full amount of the note, unless their right to recover is defeated in whole or in part by the defense of breach of warranty made by the defendant Van der Weide. So you are instructed to determine first whether there was a warranty and a breach thereof; if not, return your verdict for the full amount due on the note. If you find there was a warranty and a breach thereof, then determine the amount of damage, if any, sustained by the defendant Van der Weide, under the rule as laid down in Par. 8 of the court’s instructions. And if you allow damages in any sum less than the amount of the note, deduct such damages from the amount due on the note, and return your verdict in .favor of the plañir tiff for the difference, using form of verdict No. 1. If the damage you allow the defendant, Van der Weide, if any, is greater than the amount due on the note, then you will deduct the amount due on the note from the amount you find due Van der Weide as damages, and such difference as you find would be the amount of your verdict in favor of the defendant Van der Weide, in which event you will use form of verdict No. 2. If you find damages in any sum due Van der Weide, and they are equal to the amount due on the note,*613 then you will use form of verdict No. 3. If you follow the instructions herein given you in making your computation, your verdict will cancel the note in suit.”
The parties agreed to a sealed verdict. The case was submitted in the afternoon, and sometime during the evening of that day, they agreed upon a verdict and handed it to their bailiff. The next morning, the bailiff presented the same to the court, and, when opened, it was found to be in this form:
“Verdict No. 2.
“We, the jury, find for the defendant IT. Van der Weide, and assess the amount of his recovery against the plaintiffs herein at $125.
“M. W. Orton, Foreman.”
“Verdict No. 3.
“We, the jury, find for the defendants.
“M. W. Orton, Foreman.”
Noticing the apparent conflict in, Or irregularity of, these verdicts, the court recalled the jury, which was either in the court room or close at hand, and propounded to each juror these questions, in substance: “What was your verdict in this case, or what was your intention in your verdict'? AVhat was your verdict in fact?” And they each responded as follows:
“Why, the intent of the verdict was to allow the man damages of $125; and also we came to the conclusion that it was probably necessary to sign Verdict No. 3, in order to cancel the note; that was the intention of the jury.”
One said:
“No, we figured his damage was $250 and the price of the note $175, and that left $125 of the $250.”
This one was evidently mistaken in his mathematics; but the same man said they intended to award damages to defendants in the sum of $125, and to cancel the note.
No error appears, and the judgment must be, and it is,— Affirmed.