Stucksleger v. Smith

Cole, J. l. Pleading j conciuViou^1 demurrer. The demurrer was to the whole answer, and, if either count was good, it should not have been sustained as to such count. But was either count good? As to the first count, it did not deny any averment of the petition; it only denied the prayer or demand for judgment for fifteen hundred dollars. There was therefore no issue of fact to be tried by court or jury. The only question to be determined was one of law upon the facts averred in the petition and admitted by the answer, to wit: how much was due upon the note ? Even if the denial be construed to be a denial of fact, it was only a denial that defendant owed plaintiff fifteen hundred dollars, and not that he did not 288 owe him ten hundred and ninety-two dollars and sixty-six cents. The case is very analagous to Mann v. Howe et al., 9 Iowa, 546, and the court did not err in rendering judgment for plaintiff for the amount due on the -note without any jury or other trial. a. Evidence : written*instrument: pleading. As to the second count, the appellant’s counsel do not seriously maintain its sufficiency. That it is not good is quite apparent, on the ground that it would be allowing a written instrument to be varied - - , , , by a parol contemporaneous contract, as also allowing such defense against a hona fide indorsee for value before maturity. The law is well settled that neither can be done. Affirmed.