55 Iowa 582 | Iowa | 1881
That the averments of the answer would be a good defense to an action by the attorneys to recover of the plaintiff upon the alleged contract may, for the purposes of this case, be admitted. But that it can be interposed by the defendant to defeat a recovery by the plaintiff, in his own name, for the damages sustained by him, is quite another question. That
See also Elborough v. Ayres, L. R., 10, Eq. Cas., 367; Whitney v. Kirtland, 27 N. J. Eq., 333; Robinson v. Beale, 26 Ga., 17.
It seems to us that there is no sound reason nor just principle in a rule which would allow a party to defeat a just cause of action because the opposite party has made a contract with his attorney which is utterly void, and which, therefore, cannot be enforced by either of the contracting parties. As to the defendant in this action, who seeks to avail itself of the illegal contract, the rights of the j>arties are the same as if it had never been made. The plaintiff is still the real party in interest. The illegal and champertous contract, being void, divests him of no right. That by reason thereof he should be disabled from asserting his rights we do not believe. It is enough that the parties to such contracts be authorized to repudiate them, without allowing others to exonerate themselves from just obligations by reason thereof. As is said by Bay, J., in Allison v. C. & N. W. R. Co., 42 Iowa, 274,
There was a demurrer to this division of the answer, which was sustained. The defendant assigns this ruling of the court as error.
That the assignment in question, without consideration, to a member of the board of directors would not be binding upon the stockholders or creditors of the corporation may be conceded. But the defendant is neither a stockholder nor a creditor. It has no right as a mere stranger to insist that the corporation may not donate its property to whom it pleases. Besides, the assignment did not and could not have the effect of dissolving the corporation. It was the assignment of a mere chose in action — a right to sue for and collect a claim for damages. It appears to us the ruling of the court upon the demurrer to this division of the answer, as well as the rulings upon the admission and rejection of evidence upon the same question, and the giving and refusal of instructions in relation ^thereto, are so clearly correct as to demand no further consideration at our hands. We think the court might well have said to the jury, as matter of law, that the written instruments exhibited with the petition and introduced in evidence operated as an assignment of the claim to the plaintiff,
III. ■ There had been a previous trial of the action and a verdict and judgment for the plaintiff, which, upon appeal to this court, was reversed. 50 Iowa, 338. The plaintiff was a witness in his own behalf, and upon cross-examination counsel for defendant interrogated him as follows:
Question. “ Will you say you have not said, in substance, that the only thing you were fighting for now was to get a bigger judgment than before?
Objection was made by these questions, and the objection was sustained. There was no error in this ruling. The witness had already .answered substantially the same questions without objection, and, besides, the refusal to permit the question to be answered does not appear to us to be prejudicial error. That the plaintiff had perfect confidence in the justice of his cause, and in his right to a larger verdict than he obtained on the first trial, ought not to prejudice him as a witness nor affect his right to recover,
. The evidence shows, beyond question, that the fire originated in or upon the Libby elevator, and was communicated therefrom to the building and property of the plaintiff. A witness was called by the plaintiff who testified that at the
Whether, under section £289 of the Code, which provides that “ any corporation opérating a railway shall be liable for all damages by fire that is set out or caused by operating of any such railway,” contributory negligence upon the part of the owner may be a defense to an action, we need not determine in this case. The court below seems to have been of the opinion that such defense was proper, and of this the defendant does not, and'eannot, complain. But we are clearly of the opinion that any negligence of the party in possession of the Libby elevator cannot be imputed to the plaintiff, nor to his assignor, the Union Elevator Company. There is no evidence whatever that the plaintiff or his assignor had any control over the Libby elevator. On the contrary it appears that it was owned, operated and controlled by another. We can conceive of no state of the law, with or without the statute, which would hold a person responsible for that which he
YI. One Kellogg’ was called as an expert by the defendant, to testify to the value of the building in controversy. He stated that it was worth from §6,500 to $7,000. Thereupon the defendant’s counsel propounded this question to the witness — “ Could it have been erected at the time for that money?” Answer: — “ I think it could. I would be willing to take the eontraetP The last sentence of the answer was excluded upon motion of the plaintiff as being “immaterial and not responsive.” This ruling was clearly correct. That it was not responsive is apparent, and when the witness stated the value of the building, the cost of its constituent parts, and the actual outlay necessary for its construction, as bearing upon the aggregate value of the structure, it was immaterial as to what he might have been willing to' erect it for upon contract. At most it would have heeri but an argument of
VII. Another witness who was present at the time of the fire, after detailing what he saw of the conflagration,'was asked these questions — “ And if there had been a fire kindled on the outside of the roof could you have seen that, at that time?” ‘-And if there was any fire on the outside of the roof at that time, and you had a bucket of water with you, could you have extinguished it? ” “ ITow extensive, from the appearance of the smoke, and where it .issued through the roof, was the fire inside?” These questions were objected-to as calling for the conclusions of the witness. The objections were sustained. These rulings appear to us to be correct. The questions call for the mere conclusion or opinion of the witness upon matters which it was the province of the jury to determine from the facts detailed by the witness. The witness had already given in evidence all the facts claimed to have been within his knowledge, in relation to the fire, its location and extent.
VIII. A witness testified that a certain kind of spark arrester had been used upon a certain railroad. lie was asked this question- — “ State how long that, road had used that kind of spark arresting apparatus, and if it abandoned it, if you know.” An objection to this question was sustained. The ruling of the court was correct, if for no other reason than that the witness had already stated all the facts, of which he claimed to be in possession, touching the subject inquired about.
In another assignment of error it is claimed that the defendant asked the same witness his opinion, from his own knowledge, of the practicability of engines equipped with spark arresters such as he described, and that an objection to the question was sustained. "Whether'the question was propounded or not is left in some doubt, after an examination of the record. But if it’was asked there was no error in sustaining the objection, because the witness had stated distinctly
IX. The plaintiff introduced evidence as to the value of the labor necessary to put the machinery in the elevator. This was objected to, and the admission of the evidence is assigned as error. The evidence was competent and proper. It was the right of the plaintiff in examining his witnesses as to the value of the building to have them estimate not only the aggregate value of all its parts, but to give the value of the lumber used in its construction, the value of the machinery, the cost of the labor necessary to erect the building and place the machinery therein, and the like.
X. Exceptions vere taken to the rulings of the cotirt upon •the exclusion of certain testimony as to the value of corn on the day of the fire. "We think the evidence was properly excluded. In one of these rulings it appears that the court excluded the statement of a witness as to what he paid for corn at Malcolm, some six miles distant from Brooklyn. He had fully stated the value on said day, and the difference in value between Malcolm and Brooklyn. This was all that defendant could properly ask the witness in his e?:aminationin-chief. In cross-examination a witness may properly be interrogated as to particular sales for the purpose of testing his knowledge as to the matter under investigation. The testimony of another witness as to the value of corn wras properly excluded because he did not show himself qualified to testify on that question. Objections were made to certain evidence introduced by the plaintiff in rebuttal. The ground of the objections was that the evidence was not rebutting in its character. An examination of the record satisfies us that there was no abuse of the discretion of the court in this particular.
XI. There is one other alleged error upon a ruling as to the admission of evidence which remains to be noticed. It
It was perfectly competent for the witness to give the substance of the testimony of the deceased witness. If it appeared from the answer that the witness was not qualified so testify, objection should have been made, and the court should have been requested to exclude the evidence from the consideration of the jury. See Green, on Ev., section 165; Harrison v. Charlton, 42 Iowa, 573; Fell v. B. C. R. & M. R. Co., 43 Id., 177. But taking the testimony of the witness entire, which we need not here repeat, we think that he .did undertake to give the substance of all of the testimony of the deceased witness.
XII. An exception was taken to the sixth paragraph of the court’s charge to the jury. It is to the effect that as it is not claimed'any person saw the fire communicated by the defendant’s engine to the building, the plaintiff must show such facts and circumstances as will authorize the jury as reasonable men, in the exercise of a sound judgment, and in the light of their experience as individuals in the ordinary affairs of life, to mfer that the fire was so communicated. It is contended that by this instruction the jury were warranted in finding by mere inference that the defendant set out the fire. The jury had been instructed that they must find from
XIII. The giving of the seventh paragraph of the charge to the jury is assigned as ex*ror. It authorized the jury to consider whether there was an excessive amount, of steam used at the time it is alleged the fire was set out. It is said there was no evidence showing the amount of steam the engine was carrying, nor how much was used. But the evidence is that such an amount of steam was used that the driving wheels slipped, and a great number of cinders escaped from the smokestack. Other objections are made to this instruction; they relate to an omission to recite cex’tain facts to the jury hi detail. It is urged that the recital as far as made is partial to the plaintiff, and although the jury are directed to consider all the circumstances as shown by the evidence, yet it is claimed this was insufficient. A careful examination of the instruction leads us to the conclusion that it is not unfair in this respect.
damages claimed in the action were not remote, and recovery might be had therefor. This instruction was excepted to. It is unquestionably correct, and in accord with the great weight' of authority. Kellogg v. Mil. & St. P. R. Co., 94 U. S., 469; T. P. & W. R'y Co. v. Pindor, 53 Ill., 447; Tweed v. Ins. Co., 7 Wall., 44; Fent v. T. P. & W. R'y Co., 59 Ill., 349; Kellogg v. C. & N. W. R. Co., 26 Wis., 224; A. T. & S. F. R. Co. v. Sanford, 12 Kan., 354; Ingersoll v. S. & P. R. Co., 8 Allen, 438; Perley v. Erie R. Co., 98 Mass., 414; D. L. & West R’y Co. v. Salmon,
Affirmed.