40 Iowa 540 | Iowa | 1875
I. The evidence shows that in the deed to
Blakeslee the property was described as “ containing seventy-five
The “ defendants moved the court to strike out all that part of the testimony of the witness as to whether Blakeslee read the deed, as to the description of the property in the deed, words left out of the deed, Blakeslee’s inquiries and Murphy’s replies thereto, for the reason the same are immaterial and not admissible for any purpose, the deed being the best evidence thereof.” The court overruled the motion, and this ruling is assigned as error. The evidence is not vulnerable to the objection raised. It is true, the deed, as to the description of the property, is the best evidence, but the witness did not testify as to the description. As to whether Blakeslee read the deed, whether words were left out of it, what Blakeslee’s inquiries and Murphy’s replies were, the deed furnishes no evidence. The weight of this evidence cer
II. Plaintiff introduced M. E. Blakeslee, the son of A. S. Blakeslee, deceased, and asked him to state the conversation Blakeslee, deceased, and asked Turn to state the conversation
Defendants’ counsel'submits the question whether this evidence is competent under section 3639 of the Code of 1873, though, from the tone of his argument, it is apparent that he has not much confidence in the position that this evidence was improperly admitted. It is evident, from an examination of section 3639, that in the cases which it provides for it merely inhibits the examination of the witness in regard to any personal transaction or communication between such witness and a person, at the commencement of the examination, deceased,, insane, or lunatic. The witness in question did not testify as to any transaction or communication between himself and the deceased, but in regard to a conversation which he heard between the deceased and the defendant. The section in-question does not exclude such testimony.
III. All that remains of the case respects the sufficiency of the evidence to support the judgment. Although the finding of the court is general for the plaintiff, yet we think the clear inference from the whole case is, that the court so found upon the ground that defendant,' John Collins, had estopped himself from insisting upon the defense set forth in his counter claim. There is evidence in the case tending to show that plaintiff, before purchasing the notes, saw Collins and asked him if they were all right, and that he said they were. Upon,.
Appellant, however, contends that, if Collins made a statement that the notes were all right, in ignorance of the fact of the deficit in the number of acres, he is not estopped from asserting and relying upon the truth. Citing Whitaker v. Williams, 20 Conn., 97; Taylor v. Ely, 25 Conn., 258; Davis v. Davis, 26 Cal., 23; Copeland v. Copeland, 28 Maine, 539; Danforth v. Davis, 29 Conn., 107; Combs v. Cooper, 5 Minn., 254.
Appellee, upon the other hand, insists that “ a party is estopped from contradicting his own representations on the strength of which another has acted, even where such representations were made in good faith and in ignorance of the facts.” Citing Petree v. Futer, 21 Wendell, 172; Hills v. Varet, 3 N. Y. Legal Obs., 105.
We need not now determine-which is the better doctrine. It is not controverted by appellant that “ a party’s ignorance
The land was purchased on the 25th day of April, 1868. The court might well have found that Collins was informed by Blakeslee that the land had never been surveyed. The notes were not purchased until the latter part of March, 1871. The evidence fully warranted the court in concluding that Collins was grossly negligent in remaining for three years ignorant of the actual quantity of the land, and in informing the purchaser of the notes that they were all right. We discover no error in the record.
AFFIRMED.