Wisner v. Brady

Wright, J. It is claimed that the court erred in refusing to give certain instructions asked by plaintiff. These instructions are upon mere abstract legal propositions. None of the testimony is before us, and as under a possible state of proof, as disclosed by the pleadings, the refusal may have been here correct, we will not presume that the court below erred in such refusal. Cases may arise, where the pleadings show the necessary applicability of instructions asked .and refused and where this court would consider the same without having before it the testimony adduced tending to show their pertinency. This is not one of those cases, however. One part of the answer relies upon alleged fraud upon the part of the plaintiffs and their vendoi’S, touching the sale of the goods in controversy, while another clause in express terms denies such sale. Assuming that the instructions asked were pertinent under the issue of fraud in the alleged sale, yet for aught that is disclosed in this record no sale was proven, and the question of fraud referred to in the instructions was therefore entirely out of the case. The following cases are decisive of the views above expressed: Rusch v. Davenport, 6 Iowa, 443; Porter v. Walker, 1 Ib. 456; McGregor v. Armill, 2 Ib. 30; Hanan v. Hall, 7 Ib. 153; Farr v. Fuller, 8. Ib. 347. The action of the court below in admitting the testimony [251] of Woodbury and another, is in accordance with the ruling of this court in Adams v. Foley, 4 Iowa 44. The other points made by appellants in their argument, are not legitimate under the errors assigned and are therefore not considered. Judgment affirmed.