8 Iowa 108 | Iowa | 1859
-The contract for the sale of the reaper, is contained in a written or printed order, signed by defendant, directed to plaintiff or his agent — the material parts of which are as follows: It was to be delivered at Davenport, to the care of Burrows & Prettyman, on or before the first of July, 1855 ; defendant was to pay freight and charges ; $50 at the time of delivery, and $110 on the first of March, 1856. Said machine was warranted to be of good materials — to be well made — not liable to get out of order, under’careful usage — and to be capable, with one man and a good team, of cutting and raking off, and laying gavels for binding, from twelve to twenty acres of grain a day. The machine was to be tried at the next harvest, (that of 1855), and if it did not perform as warranted, the defendant was to store and safely deliver it to Ganson, Huntly & Co., or their agent, (subject to refunding the fifty dollars paid.) If it did perform as warranted, defendant was, when called upon by G., TI. & Co., or their agent, to execute his note for $110, with interest, payable on the first of March, 1856. The note for the $110 was executed on the 20th of July, 1855, and is the one sued on in this case. Defendant pleads as a set-off, the fifty dollars paid at the time of the delivery of the machine, and the freight and charges advanced, and for this amount recovered judgment.
This much of the verdict and judgment was most clearly erroneous.’ There was no testimony tending to show, or from which the jury could possibly have inferred, that the machine had been returned, or delivered to the persons named in the contract, or their agent. On the contrary, it
A witness for defendant, on cross examination, testified, that after the machine was delivered, defendant told him he was going over to Rock Island to get some castings for the reaper. Defendant then propose to prove by the witness, what he had told him subsequent to this, and in another conversation, about the working of the machine with the castings thus obtained. Plaintiff objected to this second conversation; the objection was overruled, and the witness proceeded to detail the same, to which plaintiff excepted.
This was error. The law is, that -when part of a declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by the other — as when a letter is read, all other letters on the same subject, between the same parties, may be given. "When a detached declaration, conversation, or writing, is given in evidence, any other declaration or writing, which
The first part of this provision refers evidently to giving all of a conversation on the same subject in evidence, where a part has been elicited by one party — such conversation being entire, and not made up of detached parts. Thus, if a witness shall detail, in answer to plaintiff’s interrogatories, what a defendant told him as to the claim made against him in the plaintiff’s action, defendant has a right, on cross-examination, to inquire into what else he said at the same time, upon that subject. The second part of the section relates to detached declarations or conversations ; and in order to give any other than that one first introduced, in evidence, that proposed must be necessary to make the first fully understood, or to explain it.
The testimony in this case was admitted, we suppose, under the second clause. It could not have been under the first, for there is no pretense for the position that the second was a part of the first conversation. The parties had separated — the conversation had closed — and sometime afterward, defendant told him him about the working of the machine. Was the second conversation necessary, then, to explain or make fully understood, the first ? Certainly not, in any fair sense. What was the fact detailed in the first instance ? Nothing more than that defendant was going to Rock Island for castings for his reaper. The working, or non-working of the machine, was not the subject of conversation. To prove, then, that the defendant after-wards said that his machine did not work with thesq castings — did not explain, or make more fully understood, what was first said. What he said in the first conversation was just as fully understood when it was closed, as it was from any supposed explanation derived from the second. Dougherty v. Posegate, 3 Iowa, 88.
The order for the machine was given in May, 1855, and it was received in time for the harvest of that year. During that harvest, and while the defendant w’as using the
There is no controversy as to the rule that parol evidence is not admissible to contradict, vary, or add to, a written instrument. This rule is not infringed, however, by another, which recognizes an exception just as well established, that it may be showm by parol, that the instrument is altogether void for fraud, or the like; or that it never had a legal existence, or binding force. Fraud is shown, not to vary, contradict, or add to, the writing, but to show, that
If the case before us falls under the rule last stated, then the testimony should have been rejected. This, however, is not our view of it. By the terms of the written order, the defendant was to give his note for the balance of the purchase money, if the reaper performed as warranted, and not otherwise. To determine whether it answered the warranty, the machine was to be tested at the harvest then approaching. During this harvest, the payee (or what is the same thing, his agent), appears, and they have several conversations as to its working. It is evident that at this time the defendant was not satisfied with its operation. Erom the testimony the jury could legitimately infer, that he denied that it fulfilled the requirements of the contract —as, also, that it did not, in fact. Experiments were made, and the defendant, as the jury might fairly conclude, was
We do not say that the testimony warranted the conclusion, that the note was obtained under the circumstances, claimed by defendaut. We only hold that the testimony was not improperly received. Its effect was another thing, and as to that, we need say nothing at this time, as the case must be reversed on grounds heretofore noticed.
The views above expressed, indicate, perhaps sufficiently, our ideas upon the main question raised in the case. The instructions are very lengthy, and to take them up separately would unreasonably extend this opinion. In the
Judgment reversed.