McDermott v. Abney

77 N.W. 505, 106 Iowa 749

• Court: Supreme Court of Iowa
• Decided: December 17, 1898
• Status: Published

Opinion

Per curiam.

As the abstract contains everything essential to enable the court to pass upon the errors argued, the motion to strike because it does not contain all the evidence must be overruled. The motion to tax the cost of the appellee’s abstract to him is sustained, except as to the two pages containing the ninth instruction, for the reason it is not an abstract of the evidence, but a printed transcript of the testimony of certain witnesses, not required in order to pass upon the questions argued. If the written memorandum was assented to, as stating the agreement, it was admissible in evidence, though not signed. The petition alleged the transaction as claimed by the plaintiff, and this was set out in the instructions, and the plaintiff’s recovery limited thereto. That the court referred to the memorandum as a written contract was not material, because, whether construed to be written or oral, it might serve, if assented to, as a basis of recovery.

In several, instructions the court advised the jury under what circumstances recovery might be had on a quantum meruit, but finally withdrew the second count of the petition, and directed the allowance of the commission or nothing. As the plaintiff testified that a commission was agreed upon, and the defendant admitted that he had agreed to pay a commission, this was the true measure of damages, and the jury could not have misunderstood it. There are no doubtful questions involved in the case, and the judgment is AFFIRMED.