Wells v. Kavanagh, 74 Iowa 372

Wells v. Kavanagh

74 Iowa 372 | Iowa | 1888

Reed, J.

i evidence : introduction: discretion. I. Plaintiff offered in evidence the contract between Kavanagh and the construction company; also the bond under which he sought to charge the other defendants. They were objected to by defendants on the ground that “it did not appear that they were the contract and bond under which certain portions of the work were performed.” The objection relates merely to the order in which the evidence should have been introduced. If, under the issue, plaintiff was required to introduce these instruments in evidence, — a question not raised,— the natural order was to introduce them before any other proof was made. They were evidence of the contract under which plaintiff claimed to recover ; and, if it was essential that they should be introduced, that was the proper time for their introduction. In addition to this, questions relating merely to the order of the trial are within the discretion of the trial court, and an irregularity in that respect will very seldom afford grounds for disturbing the judgment. It is clear, in the present case, that there was no abuse of discretion.

• It is insisted, however, that no evidence was introduced at any time which tended to prove that the labor and material for which plaintiff sought to recover was performed and furnished under the contract. But this objection is not well founded. There was evidence tending to prove that the labor was performed for; and -the materials furnished to, a subcontractor under Kavanagh on the section of road covered by his contract with the construction company. The question as to the sufficiency of the evidence to establish those facts was for the *374jury; and, if they were established, the conclusion might fairly be drawn from them that they were done and furnished under the contract.

a_¡contract defendant and stranger. II. Defendants offered in evidence the contract between Kavanagh and the subcontractor for whom the labor and materials were done and furnished for which plaintiff seeks to recover, but on p]aintiff’s objection it was excluded. By that contract the subcontractor undertook to perform all the labor and furnish all the materials required on the portion of the work which he undertook. We held in Jordan v. Kavanagh, 63 Iowa, 152, which was an action on the same contract and bond, that the underr taking of Kavanagh and the sureties on the bond was that he would pay. all just claims against him or his subcontractors for labor and materials done and furnished upon the work, and that suit might be brought on the bond by any person injured by the breach thereof. His liability arising under his contract with the construction company and that of. the sureties on the bond was in no manner affected by his subsequent agreement with the subcontractor. Nor was plaintiff’s right to maintain an action'on the bond defeated by it. The contract was, therefore, immaterial, and was properly excluded.

3 instevotions ¡ referring to issues jury11 from III. The court, in stating the issues, omitted to make any reference to the affirmative defenses pleaded defendants. But no questions arising under those allegations were submitted to , . ° jury for determination; the court having disposed of all questions of that character by rulings made during the progress of the trial. As the questions were not to be passed upon by the jury, the court did right to omit all reference to them in the instructions. We find no error in the record, and the judgment will be

Affirmed.