Smay v. Etnire, 99 Iowa 149

Smay v. Etnire

99 Iowa 149 | Iowa | 1896

Kinne, J.

1 I. Appellant complains because the witness, Sargent, was permitted to testify that the plaintiff was a cripple. As the petition alleges such fact, and it was denied in the answer, it was a matter of issue; and, whether material or not, no prejudice resulted from the ruling.

2 II. On cross-examination, defendant asked plaintiff as to creamery wagons, and if he did not tell defendant that the wagons belonged to the creamery, and would go to him. These questions were objected to as incompetent and immaterial, and the objections sustained. The rulings were proper. It appeared from the evidence of the defendant, that whatever conversation the parties had about these wagons, occurred long before the farm was purchased, and, indeed, before defendant thought of buying it.' It could, therefore, even if not objectionable otherwise, have had no bearing upon a contract which at that time was not within the contemplation of the parties.

*1523 4 III. Witness McKane, on cross-examination, was asked: “How does this quarter-section of land compare with the half of the county you have seen? Tell us.” This question was touching the Nebraska land. The record fails to show what the ground of the objection was upon which the ruling was made. The guaranty was that one hundred and thirty-five acres of said land was to be equal in quality to the average farming lands in Buffalo county. The comparison called for by the question embraced but one-half of the lands of the county, while the contract called for a comparison with the whole of the farming lands of the county. Again the question called for a comparison of the entire quarter section, while, as we have seen, the guaranty was only as to one hundred and thirty-five acres of the quarter section. In the absence of anything in the record showing what objection was in fact made, we must presume that, if any objection to the question would have been good, it was interposed. The comparison called for not being a proper one, under the terms of the contract, there was no error in the ruling.

5 IY. Appellant attempted to show by two witnesses, that plaintiff had been to see the Nebraska land, and what he said about it. The evidence was excluded, as incompetent and immaterial, and calling for a conversation after the contract had been made, and after the rights of the - parties had become fixed. As to witness Miller, the ruling was without prejudice, as he afterward testified to what plaintiff said. Witness Rosburow was asked if he knew of plaintiff’s going to Nebraska to look at the land, and what he said on his return, and if he did not say, after having seen the land, that it was better land than defendant had told him it was. It seems to us, that this evidence was both competent aud material. If, after,making the trade, plaintiff inspected the *153Nebraska land, and found it all it had been represented to him, it was a proper fact to show, as tending to contradict the claim as to the quality of the land.

V. Exceptions are taken to certain instructions of the court. We have examined each of them, and find them correct. For the error heretofore pointed out, the judgment below is reversed.