Gaston v. Austin , 52 Iowa 35 ( 1879 )

Rothrock, J.

1. practice : waiver of error: instruction. I. Other allegations were set forth in amended answers, which, in the view we take of the case, are not necessary to be considered. The court instructed the jury to the effect that if they found from the evidence that the defendant employed the plaintiffs to do service for him and they did such service, and the price was agreed upon, then the contract price should be the measure of recovery, but that if there was no contract but that of employment, then the plaintiffs would be entitled to recover such sums as the evidence showed their services to be reasonably worth.

It is contended that the instructions were erroneous because the plaintiffs did not aver special contracts in their petitions. The petitions may well be construed as claims upon special contract for services, although they are general and indefinite in statement. The defendant set up special contracts with the plaintiffs, and all the parties introduced evidence of special contracts without objection. Under these circumstances we think the instructions were not erroneous. If the defendant was not content to go to trial upon petitions which stated the claims in such a general way, he should have moved at the proper time for more specific statements.

II. The court refused to submit to the jury the claim for malpractice set up in the counter-claim, upon the ground that there was no evidence tending to support such claim. This ruling is assigned as error. It would probably be sufficient to sustain this ruling of the court to say that the abstract of appellant contains only a part of the evidence. But we think the evidence contained in the record does not tend to establish the counter-claim. It does not appear therefrom that the cause was submitted to the Supreme Court upon an abstract that did not contain all the evidence. An agreement to an abstract by counsel for appellee is not negligence unless it be shown that the record lias not been pi reserved, so that an abstract of evidence can be made. This does not appear in the evidence in this case. It appears from the decree signed by the judge that the notes of the evidence taken by the short hand reporter were duly filed and made part of the records in the cause. If made part of the record it must have been done in the proper manner, and if the evidence was of record that was all that was required. Further, there is no evidence.tending to show that the abstract submitted to this court was not correct.

III. The defendant was asked upon the trial when under examination as a witness whether he stated certain facts as a witness in the foreclosure case. This testimony was very properly excluded by the court, upon the ground that the record of the evidence in the foreclosure case was the best evidence of what it contained.

IV. Exceptions were taken to the exclusion of certain testimony sought to be elicited from Hon. M. E. Ontts as to the practice in this court, and the duty of attorneys in the matter of presenting'abstracts and the conduct of causes. This ruling was correct in view of the fact that it appeared .from the record in the foreclosure case that the evidence was of record.

V. Lastly it is urged that the court erred in taking from the jury the consideration of an alleged contract set up in the defendant’s answer, by which it was agreed that $100 attorney’s fees should be taxed np in favor of plaintiffs, provided it could be made out of the mortgaged piroperty, over and above defendant’s claim. This averment of the answer was not taken from the jury. Tlie court instructed the jury generally as' to the contracts made between the parties, and this was as fairly included as any other issue in the case.

Affirmed».