Peterson v. Allen , 12 Iowa 366 ( 1861 )

BaldwiN J.

The claim of plaintiff is upon an account, one item of rvhich is as follows : “To note taken up by L. E. P. 300.00.” The defendant answered, admitting the execution of such a note, and that it was in the possession of plaintiff, but claimed that the account suedupon ®had been fully settled, and the note paid, and called upon the plaintiff to reply thereto. It is also alleged that there was another suit pending between the plaintiff and defendent, on said note. Upon the trial, the plaintiff introduced in evidence a note corresponding in date and amount to the one charged in the account, to the introduction of which the defendant objected, claiming that there was no sufficient copy attached to plaintiff’s petition. The admission of the note in evidence is the principal error assigned.

The object of the provision of the code requiring copies of notes or instruments of writing sued upon to be attached to the petition, is to advise the opposite party fully of the plaintiff’s claim, and to prevent surprise at the time of the trial.

If the action is founded upon a written contract and no copy thereof is given, the party sued may demur; or as in this case where the account is not sufficiently explicit, a more specific statement could have been required.

It appears however from defendant’s answer that he fully understood the nature and character of this item of account as the note is fully referred to in defendants’s answer, and claimed to have been paid; and also another suit pending thereon. See Farwell v. Tyler, 5 Iowa 535. The appel. lant fails to make apparent any such error, as in any manner prejudiced his rights.

Judgment affirmed.