A. Straus & Co. v. Shaw

50 N.W. 1060, 84 Iowa 300

• Court: Supreme Court of Iowa
• Decided: January 25, 1892
• Status: Published

Opinion

Granger, J.

I. The assignments of error bring in question only the correctness of the court’s ruling on Damages: breach of contract: pleading: evidence. the admission of evidence; and; to a proper determination of the questions thus pre-gented, we must first settle a contention in the case as to the character' of the action on which recovery is sought. The appellee contends that the action is upon contract, and that only evidence proper for such a recovery was admissible, while on the other hand the appellant contends, as we understand it, in argument, that it was entitled to recover for the torts of the defendant, and to introduce evidence for that purpose.

The petition contains but a single count, and but a single cause of action should have been pleaded therein. 'Code, section 2646, provides: “Where the petition contains more than one cause of action, each must be stated wholly in a count or division by itself, and must be sufficient in itself.” This is a familiar and well-known rule, and pleadings should be construed as in conformity with it, unless the contrary appears. The petition, in terms, pleads a contract, a breach thereof, that damage resulted therefrom, and asks for judgment because of it. That damage is sought in the petition because of a breach of contract, is not open to question, and is not, as we understand, questioned.

Are there two causes of action pleaded? The part of the petition, the substance of which only is stated, states what would be a cause of action based upon tort; but it is alleged, not as a basis for recovery, but as a basis for pleading a settlement, and the contract on which the recovery is sought. The damages, prior to the settlement, by the terms of the pleading,. were relinquished to secure the contract for protection in the future, and the language of the petition — the part quoted — contains no words indicating a right to recover because of a neglect to observe what the law required as between landlord and tenant, but because of a failure to observe an agreement to make certain changes; and we think the pleading is not doubtful in that respect, and that it states but a single cause of action.

The settlement of the issues in the case is a practical disposition of the assignments of error as to the exclusion of evidence. The plaintiff, to recover, need only show a valid contract, a breach thereof, and the resulting damage. The testimony excluded by the court, of which complaint is made, was not material for that purpose, but was designed to establish a right of recovery for the torts of the defendant. We think, with our construction of the issues, the testimony excluded would not be regarded as material.

II. The fifth assignment is directed to the action of the court in sustaining the motion to direct a verdict for the defendant, and the appellant says in argument: “If the evidence authorized a verdict for the tort or on the contract, or, rather, if there was testimony tending to support either cause of action, then the action of the court in taking the case from the jury was error.” With our construction of the pleading, we are only to inquire if there was such evidence as to require the court to submit the case to the jury on the issue presented as to the contract and breach. If the appellant contends that there is, we regret that it has not called our attention particularly to it. There is some evidence that the defendant at times offered to pay damages,— told the plaintiff, when he sustained damage, to bring in his bill, and he would pay it, — and of his offer at one time to pay, and it was refused because the amount was small, but we find no evidence of a contract, as alleged in the petition, to justify the submission of the cause to the jury. The judgment is aeeirmed.