Bemis v. Woodworth

49 Iowa 340

• Court: Supreme Court of Iowa
• Decided: October 24, 1878
• Status: Published

Opinion

Adams, J.

I. After all the evidence was introduced the plaintiff was permitted, against the objection of the defendants, to file an amended reply, in which she avers that the release was without consideration. The defendants contend that the amended reply is inconsistent with the original reply, and that a new issue was introduced, inconsistent with the issue upon which the evidence had been introduced, and for that reason not allowable.

The amended reply sets up a want of consideration for the release, and we think that the original reply does the same thing. The pretended consideration of the release is the rearing and educating of the child. The original reply avers that it was understood that the society and labor of the child should be considered as full compensation. It is true it avers payment by plaintiff, and because it does the defendants contend that the amended reply raises a new issue, but the original reply avers that the payment was made in order to end all controversy. Without determining whether the trial court might not, in its discretion, allow an amendment, even at that stage, which should introduce an issue which would be inconsistent with the issues upon which the case had been thus far tried, we have to say that we do not think that the amendment had the effect complained of.

1. practice: evidence undisputed: withdrawal of case from jury, II. The defendants assign as error the withdrawal of the case from the jury, and the rendition of judgment for the plaintiff. The case was withdrawn upon the ground that the undisputed evidence shows that the plaintiff was sole heir, and that the release was executed without consideration, and we think that the action of the court was justifiable. No question now is made upon the heirship. The fact of a want of consideration is disputed. But the plaintiff testifies that there was none, and we have, seen no evidence tending to show that there was. Woodworth himself testifies that there was no agreement that he was to be paid for keeping the child, but he says that the child was to be his own. His theory as to the ownership of the child precludes the idea of compensation. If the child had really become his, as it might by adoption under the statute, the plaintiff’s heirship would have been cut off, and the child’s estate would have passed to Woodworth by inheritance.

It is contended that the labor necessary in the collection of the claim was a sufficient consideration to uphold the release. But no labor had been performed for plaintiff, for which she was hable, nor did Woodworth agree to perform any for her.

It is contended that a contract by which a doubtful claim is transferred needs no consideration. But all claims may be considered doubtful, in the sense that there is not an absolute certainty of collection. Besides, if there were two classes, which the law could recognize, there would be no ground for the rule contended for.

Several errors are assigned upon the admission and exclusion of evidence. But the questions raised are independent of the one above considered, which disposes of the case.

AFFIRMED.