E. W. Bachus & Co. v. S. L. Staebler & Co.

91 Iowa 736

• Court: Supreme Court of Iowa
• Decided: October 2, 1894
• Status: Published

Opinion

Granger, C. J.

Appellant says of the fifth instruction given by the court that, “it authorized the jury to consider as evidence the dissolution suits; the contract of dissolution between Staeblers and Henn, by which the former agreed to assume the liabilities, etc., and notice thereof to plaintiff, after .debt created; and the affidavit of Bowe in regard to no necessity for a receiver,” — and urges that it was not proper evidence to be considered by the jury. The evidence is exactly what was necessary to prove the averments of the answer. The facts were pleaded as a defense, and issue taken thereon without objection. Under such circumstances, the evidence to prove the facts pleaded is proper. The same reasoning applies to what is called the “7 error,” because one Bowe was permitted to testify to the making Of an affidavit, and receiving collateral security. It was proper evidence to prove the facts put in issue by the pleadings. Nothing more need, or well can, be said in support of the ruling.

These are the only assignments argued, except that it is said that there was no evidence “warranting a release of defendant Henn.” There surely was evidence to establish the facts pleaded as showing a release, upon which issue was taken. We do not, in such a ease, consider the sufficiency of the pleading. Its sufficiency has not been, nor is it now, questioned.

Appellants have, in a general or abstract way, argued some propositions of law, but not in connection with any particular assignment of error, nor, in view of the record, in a way that we can give them such application. Even though we might agree with appellant in its contention, still it can avail it nothing, in view of the record before us.. The judgment must be affirmed.