Ault v. Sloan

4 Iowa 508

• Court: Supreme Court of Iowa
• Decided: July 1, 1857
• Status: Published

Opinion

Wright, O. J.

The only objection urged to the instruction given by the court, is, that the jury should have also been told, that the subsequent promise, in order to bind the indorser, must have been made with the knowledge that he had been released. There is nothing to show that this qualification or addition, was asked or insisted upon by the defendant, at the time the instruction was given. The error of the court, if any, according to appellant’s argument, lies in the fact, that it did not give all the law on this subject, or proceed to state all those things which were necessary to constitute a good and valid promise on the part of the indorser. We think that while the instruction might have more fully stated the law, with the qualification now insisted upon by defendant, yet that giving to the word promise its proper legal signification, in which sense the jury are presumed to have received it, there is no reasonable probability that they were misled thereby, to appellant’s prejudice. It was said in Miller v. Bryan, 3 Iowa, 58, on a question very similar to this, “ that to have prevented any possible, or even probable misapprehension by the jury, the plaintiff (in this case, the defendant,) might well have asked for the qualification now suggested. Having failed to do so, we do not think he can now complain.” So, in this case, if all the law on the subject was not given to the jury, it was the fault of the appellant. So far as it was given, we are unable to see that any prejudice could, or did reasonably result therefrom to defendant’s cause.

Judgment affirmed.