Lowen v. Crossman

8 Iowa 325

• Court: Supreme Court of Iowa
• Decided: April 14, 1859
• Status: Published

Opinions

Stockton, J.

*

The canse was tried before a justice, upon the issues made, whether the plaintiff' was entitled to the sum claimed, as compensation for the labor of his son; whether the agreement was that the son should labor for defendant for one year; and whether defendant had sustained any damage by reason of the failure of the son to work for the whole time agreed. These issues seem to have been fairly made, and on the trial, the judgment of the justice was for the plaintiff".

When the cause came into the district court, not only did the court permit the plaintiff to make a new issue, by putting in an additional replication to defendant’s answer, but allowed him to file a demurrer to so much of the answer as averred that the contract between the parties was, that the plaintiff’s son was to work for one year, and sustained the demurrer to the same, striking out all that portion of the answer. By this means, the defendant was deprived of his right to show that he had sustained any damage, by reason of the failure of the plaintiff to perform his part of the agreement; which damage he had the right to set-off against the plaintiff’s claim for compensation for the labor of his son for the five and a half months.

It is not necessary for us, at this time, to consider whether there was error in the permission given by the court to the plaintiff to file a replication in the district court, changing the issue upon which the cause was tried before the justice. The more material matter to be considered, is the ruling of the court in suffering the demurrer to be filed in the district court, and in sustaining the demurrer, whereby the issue joined by the replication and rejoinder, were entirely superseded, and no issue left for trial, but the simple question whether the plaintiff was entitled to the amount claimed for the labor of his son, for five and a half months.

“We think this course of proceeding calculated to prejudice the rights of the defendant. It deprived him of his undoubted privilege, of showing that the contract having been for the labor of the plaintiff’s son for a year, and he having failed to labor for that length of time, the defendant had suffered damage by reason of such failure, which he was entitled to set-off against the plaintiff’s claim for the services of his son, for the length of time that he did labor for defendant. Eor the error in sustaining the demurrer to the defendant’s answer, the judgment of the district court will be reversed.

Judgment reversed.

Weight, 0. J., dissenting.