68 Iowa 443 | Iowa | 1886
The evidence shows that’ defendants undertook to advance whatever amounts might be required as margins on a contract for the purchase by plaintiff for future delivery of 750 barrels of pork. The contract was made by a commission merchant in Ohicago. He was directed by defendants to make the purchase, but the contract was made for plaintiff’s benefit. The $1,000 note and mortgage were given, and the George W. Smith notes were assigned in part,
The point insisted on by counsel is that it was not competent for plaintiff to setup in his reply a claim for damages distinct from the claim made in his original petition, and that the claim in question should have been disregarded because it was pleaded only in the reply. The answer to this position is that, while the claim in question was set up for the first time in the pleading denominated a reply, it was not pleaded in reply to any claim contained in the answer or cross-petition, but by way of amendment to the petition. The practice of the pleader, in setting out allegations which were intended as amendatory of the petition in the same pleading with those intended as a reply to the answer, or as an answer to the cross-petition, is not to be commended, and, if defendants had moved for an order requiring plaintiff to set out the allegations relating to his cause of action in a pleading distinct from the one in which his matters of defense were pleaded, such order would doubtless have been made. But no such motion was made. The parties tried the cause below on the theory that the allegations in question were pleaded by way of amendment to the original petition, and whatever objections may have existed to the form of the pleading must now be regarded as having been waived. It is not material to set out the evidence introduced by the parties for the purpose of establishing or defeating this claim. We have examined it with care, and deem it sufficient to say that the allegations upon which the claim is based are established by a fair preponderance.
Tbe record presents no other questions for our determination. Tbe judgment will be
Affirmed.