Davis v. Payne & Shadduck

45 Iowa 194

• Court: Supreme Court of Iowa
• Decided: December 13, 1876
• Status: Published

Opinion

Rothrook, J.

I. We have carefully examined the evidence relied upon by appellant to show that there was an extension of time given for a consideration, without his knowledge or consent, and are of opinion that the court below correctly found for the plaintiff on that issue. There is a conflict in the evidence with, as we think, a preponderance against appellant. There being such conflict we could not disturb the finding of the court below under the rule so often announced here, even conceding the preponderance to be in appellant’s favor. II. It is insisted by counsel for appellant that as there was no reply to the answer, the allegations thereof should be

1. pleading: reply. held as ^milted. . A reply was neither necessary nor allowable. There was no counter-claim; and plaintiff did not claim to have a defense to any matter alleged in the answer by reason of the existence of some fact which avoided the matter alleged in the answer. The-allegations of the answer not relating to a counter-claim are to be deemed controverted without a reply. Code, Secs. 2665, 2712.

2. surety: note!'ev°i-y den°e. III. The alleged request to enforce collection of the note was not in writing. It is claimed, as there was no.objection interposed to the oral evidence showing such request, that objection was thereby waived. . This cannot be admitted. The Code, Sec. 2108, provides that such request shall be in writing. The fact to be established was that a request in writing had been given. The defendant’s evidence only shows that he had not complied with the statute by making the request in writing. The fact that plaintiff made no objection to the evidence is a waiver of nothing in regard to the thing defendant was required to prove, that is, a request in writing.

Affirmed.