*1671 *1682*166I. By a verbal contract the plaintiff sold to the defendant some cattle and hogs for future delivery. The cattle were delivered, and the contract price paid, less one hundred and twenty-five dollars, for the recovery of which, with interest, this action is brought. The answer admits the averments of the petition, and sets up a counterclaim for a failure to deliver the hogs, placing the damage at one hundred and ninety dollars, or sixty dollars in excess of the balance due on the sale of the cattle. Plaintiff then filed a.second count to the petition, in one *167part of which he justified’ his failure to deliver the hogs because of a failure of the defendant to take them according to the agreement, and in another part he states facts as a basis to recover an additional amount on the sale of the cattle, based on their market value, because of an agreement made on the day of their delivery. Plaintiff also filed a denial to defendant’s counterclaim. The jury found for the plaintiff on the first count of the petition, and, in effect, against him on the second count, so far as concerned his claim for the market value of the .cattle. The matter pleaded in the second count of the petition, by way of justification or excuse for not delivering the hogs, was proper matter for reply, as it was in1 avoidance of, or a defense to, matter pleaded in the counterclaim; Code, section 2665. Had this course been pursued, some confusion would, we think, have been) avoided. The trial, however, proceeded without objection, and the court submitted to the jury the question of the place where the hogs were by the contract to be delivered, and complaint is made of this because by*the pleadings it appears that the place was at Harlan, Iowa. We think that it does appear from the pleading that Harlan was by the contract the place of delivery, but for some reason the cause was tried as if that question was at issue. Appellant thinks not. The plaintiff was recalled, and examined as follows: “Witness recalled: The cattle were to be delivered on the farm with a three per cent, shrinkage, or in Harlan, at my option, without shrinkage. There was nothing said about when the hogs were to be delivered. Eecrossi-examination: Q. Where were you to deliver them, — the hogs? A. Well, not any further than Harlan. I don’t know *168just where. I wouldn’t have delivered them any further than that. Q. But you were going to deliver them in Harlan? A. Yes.” Appel-' lant seemed to- be the only one to examine about where the hogs were to he delivered, and, out of the condition of the pleadings and the method of trial, the court was led to submit a question about which there was no- issue. It will be seen that, by the testimony drawn out by appellant, the place of delivery was uncertain to some extent, and this isi likely why the question was submitted, for the defendant testified that the place of delivery was Harlan. Under such a state of facts-, we think that appellant should not complain. Besides, it is clear that no prejudice resulted. The case is within the rule of Hoyt v. Hoyt, 68 Iowa, 703 (28 N. W. Rep. 27), and Collins v. Collins, 46 Iowa, 60. Some other assignments are based on the action of the court in treating the question of place of delivery as at issue, and they need no further consideration.
3 II. The eighth instruction fixed the measure of recovery on defendant’s counterclaim, and the rule given is said to be erroneous. We think the rule given the correct one; but, even if -erroneous-, it is without prejudice, for the reason that there was no recovery on the counterclaim, and until the facts justifying a recovery were found, the measure of recovery was of no moment, and was not applied. The same considerations are applicable to the testimony admitted to show the damage.
*1694*168III. There is a complaint as to evidence admitted in relation- to the written memorandum or agreement executed when the cattle were delivered, and which was made the basis for a recovery of the mar*169ket price of the cattle in the second count of the petition. It is thought that plaintiff, by his testimony, contradicted the writing. And here, again, it is not now material or prejudicial if he ■did, for defendant was successful on that branch of the case, and without such evidence he could not have been more so. The writing had no bearing whatever on the branch of the case on which recovery was had. The judgment is affirmed.
AI-generated responses must be verified and are not legal advice.
