Morrison v. Myers , 11 Iowa 538 ( 1861 )

Loavb, C. J.

The rejection of Connell’s letter to Downey, another witness, under the circumstances, was not error. It could only be read as evidence for the purpose of impeaching Connell’s oral testimony. The proper foundation was not laid for this. It is true the letter was shown to him, and he admitted the hand writing and signature was his. But it does not appear that he read the same or that his attention was called to that part which it is claimed was in conflict with his testimony on the stand, so as to give him an opportunity to explain. Besides, a careful comparison of the contents of the letter with the testimony of the witness, satisfies us that it rather supports than impeaches the witness, so that if its rejection was error at all, it was error without prejudice.

II. The court refused to give two instructions asked by plaintiff, which is set down as error. The first is as follows: “That the defendants having alleged in their third plea of payment, that the said payment was made by the execution of other notes and securities, and they having failed to offer such other notes and securities in evidence, or to give secondary evidence of the contents of the same, there is no evidence before the jury under the plea, and upon this they must find for the plaintiff.” The defendants in their plea alleged that these new notes and securities wore not in their possession, and that they could not produce them. The particular contents of these new securities were not in issue in such a sense as to call for their production. The gist of the inquiry was, as to the fad whether the new notes and securities had been taken in lieu of the old, whereby the latter were cancelled. Evidence tending to establish this fact would itself be primary evidence, and hence the refusal of the above instruction was not erroneous. /

It is enough, perhaps, for us to say that the second instruction refused could not have been given, under the evidence adduced, without some modification. We have before held that when such modification becomes necessary, it would not be error to refuse the instruction. Grimes v. Martin, 10 Iowa 347.

In addition to these supposed errors, the motion for anew trial was founded upon the ground that the verdict was against the weight of evidence. This is not so clearly apparent as to authorize us in reversing the judgment.

Affirmed.