Phelps v. Kathron

30 Iowa 231

• Court: Supreme Court of Iowa
• Decided: December 12, 1870
• Status: Published

Opinion

Beck, J.

A motion for a new trial upon the ground that the verdict was contrary to the evidence was overruled. The motion should have been sustained. Upon the pleadings plaintiff was entitled to recover. A plea of tender admits the plaintiff’s right to recover to the extent of the tender. Brayton v. The County of Delaware, 16 Iowa, 45; Johnson v. Twiggs, 4 G. Greene, 97; Frink & Co. v. Coe, id. 555.

The verdict being against this admission of the pleadings should have been set aside. The remittitur of the amount of the verdict in defendants’ favor does not cure the error. The verdict should have been for, at least, the amount tendered in favor of plaintiff. But tlie judgment upon the verdict after the remittitur is for defendant, which is deafly contrary to the admissions of the pleadings.

Reversed.