Wiseman v. Thompson

Granger, J. [608] I. It is urged (tha.t testimony to show the facts under which it is averred that the note Was delivered, or, in other ,words, to “show the conditions of the pretended original agreement,” could not be used. The thought is that such testimony, and the [609] facts, if established, contradict the terms of the note, in violation of the general rule as to parol evidence to vary or contradict a written instrument-. Without saying that the rule sought to be applied has ¿application to this case, it is enough to say that the objection came too late. The petition, on its face, plainly shows the facts upon which a recovery was sought, and the objection now urged could have been taken advantage of by demurrer, if valid. By a failure ,to in that manner urge the objection, it is= waived. There was no motion in arrest of judgment. See, as fully sustaining the holding, Brockert v. Railway Co., 82 Iowa, 369; Linden v. Green, 81 Iowa, 365; Dunn v. Wolf, 81 Iowa, 688. 2 II. It is also urged that the case is within the statute of frauds, in that the facts pleaded show that defendants assumed .thereby to answer for the debt of plaintiff. Conceding, without so holding, that the conclusion is correct, the same rule is to be applied as to the admissibility of parol evidence, for the facts as to the undertaking are all apparent on the face of the; petition. If, as claimed, the .contract pleaded by plaintiff is within the statute of frauds, it was his duty to aver facts necessary to take it out of the statute, or-his pleading is demurrable. This rule obtained in Burden v. Knight, 82 Iowa, 584. See, also, Babcock v. Meek, 45 Iowa, 137. The sufficiency of the petition was not questioned in 'this case, but the-defendant pleaded the statute of frauds in Ms; answer. If the defect was not apparent on the face ok the petition, advantage could be 'taken of it by answer. Code, section 2650. But, where the defect is apparent on the face of the petition, the objection is to be taken by demurrer, and not by answer. It is especially provided .that, when a petition fails to show that a claim. [610] is evidenced by writing where it should be, it is demuriable. Code, section 2G48, subdivision 6. If there wTas an advantage because of the statute of frauds, it was waived, and the facts pleaded are to be treated as sufficient. The proof need only conform to the allegations of the petition. Dunn v. Wolf, supra; Mann v. Taylor, 78 Iowa, 355. 3 III. The evidence as to the well being injured by explosives was to the effect that neither party did it, if it was done. The court said to the jury that, if it was done by plaintiff, he could not complain of defendants for not completing the well; if done by defendants, it was at their own risk; and, if done by .some stranger, without the knowledge of either party, the loss must be borne by defendants. Of' the instruction as to the loss, if done by a stranger, defendants complain. It is to be assumed from the record that the undertaking by defendants was to make a good well, — one that, "by a proper test, would prove good. No question is made of the good faith or proper care in making the test, outside of tine use of explosives. If neither party was at fault for their use, then it becomes a question, at whose risk was the well during the period of making the test? The making of the test was really a part of the work to be done to fix the liability of the plaintiff for the well. Until the test was made, it was not ready for acceptance. Defendants took upon themselves the responsibility of furnishing a well or not receiving pay for their work. They assumed the chances of what might be encountered in accomplishing the result. If, while they were at work, such an injury had been done by some stranger, there could be no question as to which of the parties must bear the burden of it, and we think the same rule applied during the period of making the test of it, provided that the work of making the well was not com [611] píete, as was the case here, for the jury must have so found. It seems to. us that the defendants assumed all such risks- between the commencement and completion of the well so as to be ready for acceptance. There is a question as to the admissibility of some evidence that could in no way affect the result, and, in any event, there is no prejudice. — Affirmed.