Scott v. Morse

54 Iowa 732

Opinions

Day, J.

1. PRACTICE : pleading: verdict against irreievant evideuce. It is claimed by tlie defendants that B. F. Montgomery,, a member of the firm of Montgomery & Scott, agreed that his firm should render for defendants the services , . ....... In question without charge. And it is insisted i 1 ° ¡¡lat there is no contradiction of the testimony of J Montgomery, that he agreed on behalf of his firm that the services should be rendered without compensation. It is claimed that upon this branch of the case the verdict is opposed to the uncontradicted testimony, and, therefore, is not supported by the evidence. The only pleading interposed by the defendants .is a general denial of all the allegations of the petition. This denial simply puts in issue the fact of the rendition of the services, their value, and that the claim therefor has been assigned to the plaintiff. If the defendants intended to rely upon the fact that there was an agreement that the services in question should be rendered without compensation, such defense should have been specially pleaded.

“Any defense which admits the facts of' the adverse pleading, but by some other matter seeks to avoid their legal effect, must be specially pleaded.” Code, § 2718. The case falls fully within the principle of Parker v. Hendrie, 3 Iowa, 263. In that case, as in this, evidence was introduced, and instructions were given, on an issue not tendered by the pleadings. A verdict was returned for the plaintiff, which the defendant moved to set aside, on the ground that it was against the law and the evidence. The motion was overruled. On the question presented the following language is employed:

“ The testimony as to the agreement to return the machine, and the instructions based thereon, relate to an issue not made; or attempted to be made, by the ¡headings. The testimony was, therefore, immaterial. To justify the granting of a new trial, on the ground that the verdict is against the weight of the evidence, such want of evidence must relate to a material issue, legitimately made by the pleadings. It is the issues of fact made by the pleadings which the jury are to determine, and not other or different, ones.” This ease we regard as decisive of the question now involved.

Affirmed.