Vogel Bros. v. Mossler

51 Iowa 360 | Iowa | 1879

Adams, J.

i. practice : motion to take casefromjury. — I. There was evidence tending to show that the defendant was indebted to one Alsburg & Jordan upon a claim amounting to eight hundred and fifteen . dollars, which claim tlie plaintiffs did not saceeed in securing’a compromise of, and at the time of the trial of this action a judgment had been obtained upon the ■claim by Alsburg & Jordan against the defendant. After the defendant rested the plaintiffs filed a motion to the effect that the court instruct the jury to render a verdict for plaintiffs, stating the following as the grounds of the motion:

“ 1. The amount due on the plaintiff’s claim is not disputed, and the defendant has faffed to introduce any evidence tending to show that he has been damaged by any breach of contract upon the part of plaintiffs.

“2. The evidence shows affirmatively that defendant has not paid the claim of Alsburg & Jordan, upon the alleged failure to compromise which claim the defendant’s counterclaim is based.”

The motion was overruled, and the appellants assign the-overruling as error.

It appears to us that if the plaintiffs had failed to perform their contract the defendant was entitled to at least nominal damages, and for this reason we think that the motion was. properly overruled.

2. evidence : grairliy' II. After the motion was overruled the court was adjourned to the next day. Upon the reopening of court the. defendant was recalled in his own behalf and testiffed that the judgment had been paid. Upon cross-examination he testified as follows: “My means of' knowledge that the judgment has been paid is a telegram received this morning and a letter just received. These are-my only means of knowledge.” The plaintiffs then moved that the testimony as to payment be excluded as hearsay and incompetent. The court overruled the motion and the appellants assign the overruling as error. The defendant showed clearly that his knowledge that the judgment had been paid was derived -wholly from hearsay. We think, therefore, that, his testimony as to its -being paid should have been excluded. The appellee contends that this is not so, because the telegram was read to the jury by the defendant at appellants’ request. But this was nothing more than showing the exact words and manner- of the defendant’s information.

Reversed.