Redman & Fear v. Malvin & Cloud , 23 Iowa 296 ( 1867 )

"Wright, J.

The errors assigned relate to the instructions given at plaintiffs’ instance, refusing those asked by defendants, and the sufficiency of the evidence to warrant the verdict.

l. ihstbuctions : general exception to. I. Appellees insist that the exception alleged to the instruction given at their instance, is too general, and that this court will not, under the rule settled in Davenport Gas Co. v. City of Davenport, (13 Iowa, 229, and cases following it,) review the same. The objection being thus made, and in our opinion well taken, we are not at liberty to disregard it, whatever our opinion of the law as given in said instructions. Plaintiffs asked eight instructions, all of which were given as asked, except the fifth, which was given with a modification. Then follows two instructions asked by defendants — the first modified, and the second given as asked. The bill then recites that “defendants thereupon duly excepted to the giving of said plaintiffs’ instructions, as given by the court, and altering the instruction asked by defendants.”

This form of excepting to plaintiffs’ instructions raises no question for our review. Than this, few questions have been more frequently or conclusively settled by this court. See the case above cited; also Armstrong v. Pierson, 15 Iowa, 476; Lyons v. Thompson, 16 Id. 62; Sheppard v. Brenton, 20 Id. 41; Spray v. Scott, Id. 473; Brown v. Jefferson Co., 16 Id. 339. There is no pretense that all of said instructions are erroneous.

s. Contract : effect of rescission. II. Defendants’ first instruction was changed, but they can hardly seriously claim that as thus modified it misstated the law. Some money was paid on the _ -p, „ , . contract to deliver the cattle. Detendants claimed that by a subsequent arrangement they were released from their contract to deliver. The court charged in this connection, that though thus released, they would not be authorized to retain the money thus paid. And that this is the law, in the absence of contract, there can be no doubt. If it was a part of the terms of the contract to release, that they were to have the money paid, of course they would not be liable. But if the parties merely agreed to waive the contract for delivery, and defendants were not liable, by reason of such subsequent contract, for their failure to deliver, they might still be held to refund the money advanced.

3. pleading : set-off and counter claim. III. Was the verdict against the evidence? We think most clearly so. . There is not in our minds a shadow of doubt, but that the contract of March 18th was superseded and waived by a new one made April 3d, of the same year. By the latter contract defendants were to deliver the cattle to plaintiffs and Gadsden & Co. It was in writing and' signed “ Gadsden & Co., George Redman, Robert Fear.” The cattle by the new contract were to be delivered at the time fixed by the first. And that they were thus delivered and tendered under the last contract, there is not the least donbt. By the last, defen dents were to have seven and one-eighth; by the first, seven cents, per pound for the cattle.

What object plaintiffs had in making the new contract is not- disclosed. Probably because cattle were declining and they desired some one to divide the loss with them. However this maybe, it is clear, that they waived the first contract and had no right to insist upon- its fulfillment. It is just as clear that they were liable with Gadsden & Co. jointly, but not as partners.

This being true, defendants could hold them liable in this action, for the damages .sustained for not receiving the cattle. That is to say, though others may have been jointly liable with them, defendants could recover their damages in this action against them. See the Law of set-off and counter claim. Bev. §§ 2886, 2889, 2764. Defendants could have sued plaintiffs on this contract, and if so, they could set up their counter claim and hold them for their refusal to receive, An.d within the rule recognized by a majority of this court in Ryerson v. Hendrie (22 Iowa, 480), this would be true, though the contract was made with the new parties as a partnership.

But without going to this extent we are satisfied — • thoroughly so — that they did not contract as partners; that the jury should have so found, and allowed defendants their damages. We do not stop to inquire what these were. They were allowed nothing, but plaintiffs recovered the whole amount of the money advanced, with interest, without the ieast deduction. This was error and the cause will be remanded for a new trial.

Beversed.