Moody v. Dillemuth , 119 Iowa 372 ( 1903 )

Ladd, J.

i. evidence; strike. z note-notice-evidence. It will be noticed from the above statement that the substratum of the defense or counterclaim is the execution of the mortgage by the Dillemuths to Hillman, covering their stock of goods3 and securing the notes executed to him. Indeed, this alleged mortgage furnishes the only connection between the wrongful conversion of the stock of goods averred and the note sued on. While it appears a mortgage was given, the defendants omitted proof that it covered the stock of goods, or that it secured the payment of the note. True, John Dillemuth testified that he executed a mortgage on the stock of goods to secure Hillman, but had never read it. This, however, in so far as stating the contents of the mortgage, was stricken on motion. The correctness of this ruling is not questioned in argument. While the court may refuse to exclude e’vidence on motion, after being received without proper objection having been interposed,. it; is not error to strike it from the record, as no one can well complain if compelled to sustain his contention with the best evidence he is .capable of producing. The matter is within the sound discretion of the trial court. Possibly . a delay in presenting such motion until the parties have rested might in some cases be objectionable; but when the trial is completed in a single day, and permission to substitute other evidence is not refused, there could have been no prejudice. See 1 Thompson, Trials, section 715. In the absence of proof that the mortgage covered the s^oc^j or secured payment of the note sued 0]Qj ©vid.eriCe was insufficient to charge pláintiff with notice; and, as he purchased before maturity, for value, the court rightly directed a verdict in his favor. — Aeeirmed.