Bell v. Byerson

Baldwin, J. The first, second and third errors assigned relate to the ruling of the court upon the demurrer to that portion of the answer which sets up fraud in plaintiff in obtaining said contract. The fraud charged is, that the plaintiff made false statements to defendants aS to the price of flour at Iowa City, by representing that he had come from certain flouring mills in that place, and that the price named in the contract was the market value in said city. It appears by the pleadings that the defendants were millers, engaged in manufacturing and selling flour; that they were doing business not far from said city, and where with reasonable diligence they could have ascertained the value of the commodity sold. The representations made, as thus alleged, were not of such a character as the defendants should have relied upon. Their means of knowledge were equal to those of the plaintiff, and whore this is the case, the law will not interfere to protect the negligent. The fourth error assigned is, that the court erred in sustaining the demurrer of the plaintiff to defendant’s fifth plea. In this plea the execution of the contract is denied under oath. Only one of the defendants however made oath to this answer as originally filed. The demurrer was-filed on the 15th day of November. An amended answer was filed on the same day with the demurrer. The demurrer was sustained on the 16th day of November as appears by the record. The court erred in sustaining the demui’rer to this portion of the answer after it was thus perfected. But we are not prepared to say, under the issues made and the evidence produced, that for this error the judgment of the District Court should be reversed. The contract although not signed by the defendants was recognized by them as their deed by their ■subsequent ratification thereof. This being the case the plea of non est factum could not have been of any advantage to them if the demurrer had not been sustained. It is next claimed that the court erred in allowing a copy of the contract sued on to be read in evidence to the jury. [238] It appears from the bill of exceptions that the plaintiff first introduced several witnesses tending to prove the loss of Said contract, that he then offered to read a copy thereof to the jury. To this the defendants objected, but the grounds of such objections are not stated. As the record does not show in this ease the grounds of objection to this evidence and as we can conceive that it would be proper testimony under certain circumstances for some purposes, we are not prepared to say that its introduction was erroneous. The sixth point made by appellants is that the court erred in sustaining the plaintiff’s objection to the introduction of the evidence of J esse Byerson and J. M. Barlow, by whom the defendants proposed to prove that the contract sued on was executed by J. M. Barlow, as the agent of defendants, after having been forbidden so to do by one of said defendants in the presence of plaintiff. What the objections of plaintiff were to this evidence or on what grounds the court excluded it docs not appear. It may have been rejected for the reason that the court did not consider under the pleadings this question in issue. This issue is properly presented by the pleadings, and under it this evidence should have been received if otherwise competent. We cannot however conceive how this ruling could have prejudiced ihc defendants case before the jury. Admitting that the defendants had proved by these witnesses what they proposed to prove, could it have changed in the least the verdict of the jury ? Prior to the introduction of this evidence one of the defendants, Charles Barlow, had been called asa witness by plaintiff and had testified that J. M. Barlow was the agent for said defendants, and had a power of attorney authorizing him to transact the general business of said firm connected with their milling operations; that witness himself had agreed with plaintiff to sell him flour without specifying the quantity; that the said agent continued the negotiation of the contract with plaintiff and had executed the writing sued on notwithstanding the order of plaintiff not to give any written contract. Barlow further states that he went away and left plaint [239] iff witb his father; that afterwards he met plaintiff and he told him he had made a contract, but did not say what it was; that his father told him he had contracted to deliver 200 sacks of flour in 20 days at $2,22-J, that defendants in pursuance thereof had delivered a part of the flour. Under this evidence we are inclined to think that the contract of the agent was fully known to defendants, and- ratified by them, and if they had proved what they offered to do that it could have availed nothing. There was no such error in the instructions of the court as would prejudice the rights of the defendants under the evidence. The judgment of the District Court is affirmed.