S. W. Hallenbeck & Son v. Garst

Granger, J. On the eighth day of May, 1893, the ■ defendant firm, residing at Coon Rapids, Iowa, gave to the plaintiff, doing business at Gloversville, in the state of New York, an order for gloves and mittens to the amount of five hundred and five dollars. The goods were shipped, and reached Coon Rapids about August 1,1893. The defendant, after notice, declined to receive them, and they were afterwards burned in the depot, and this action is for the. purchase price. The answer denies the giving of a written order as averred in the petition, but admits the giving of an order, and says that it was agreed that the freight on the - goods should be prepaid from Gloversville to ■Coon Rapids, Iowa, and denies that the goods were shipped according to- the terms of the order. In a reply the plaintiff denies the averments as to the prepayment of the freight, and says that it was agreed when the order was given that the freight was to be first paid by defendant, and the amount thereof deducted from the purchase price of the goods. The issues presented were tried to a jury. 1 I.- It is first insisted that the court erred in permitting one of the defendant firm to testify as to the ■agreement how the freight was to be paid, because the order was in writing, and such testimony was incompetent. The order was taken by a traveling salesman in what is known as a “manifold order book.” The order was in triplicate, one part being sent to the plaintiff, one given to the defendant, and one kept by the salesman. They were not signed. In -the order are the words: “Freight paid through, and [511] goods to be graded to correspond to the prices.” There is a contention as to the words “Freight paid through,” and it is because of these words that appellant says that the contract, as to freight, was in writing. A difficulty with appellant’s position is this: It ■did not rely on the writing, either in the formation of -the issues, or in the presentation of its evidence. As we have set out in the statement, the reply set forth an agreement as to how the freight was to be paid, and it is in a way not indicated by the order, without oral explanation. And, more, the plaintiff, in its original presentation of evidence, sustained the averments of the reply by testimony. This would clearly open the way for defendant to use the same kind of testimony. The evidence was in the direct line of the issues. 2 3 II. There are complaints as to- the instructions. It is insisted that these assignments cannot be considered because exceptions have not been properly preserved. In the abstract, at the close of the instructions, are the words, “To all of which the plaintiff then and there -excepted.” There is no claim that all of the instructions are erroneous, and, where they are not, such an- exception has been held insufficient, repeatedly. Reeves v. Harrington, 85 Iowa, 741 (52 N. W. Rep. 517); Pitman v. Molsberry, 49 Iowa, 339; McCaleb v. Smith, 24 Iowa, 591, and cases there cited. It is, however, said that exceptions w-ere taken in the motion for a new trial. It is true that exceptions to instructions may be so taken, but it must be -done within three days after verdiet. Code, section 2789. In this case the record is an affirmative showing that it was not so filed. The cause was tried to a jury November 16, 1894. The motion for a new trial was filed December 12, 1894. It is said that the record shows that the motion was “properly filed.” We have stated what [512] the record shows. In Bush v. Nichols, 77 Iowa, 171 (41 N. W. Rep. 608), it is held that such exceptions must be filed within the three days, and the fact that the time for filing a motion for a new trial is extended by consent does not extend the time for filing the bill of exceptions. Some importance is attached in argument to1 the fact that it does not appear but that the time for filing the motion had, by consent, been extended. See Kirk v. Woodbury Co., 55 Iowa, 190 (7 N. W. Rep. 498); Ewaldt v. Farlow, 62 Iowa, 212 (17 N. W. Rep. 487). The instructions are not before us for consideration. 4 III. A new trial is asked on the ground of the misconduct of the jury. An affidavit is in the record, made by one of the jurors, showing that when the jury retired for deliberation it at once selected a foreman, and without deliberation, reading the instructions, or referring to the instructions or evidence, it proceeded to1 ballot, and that he wrote on hi® ballot, “Plaintiff,” and put it in the hat; that upon reading the ballots his ballot was read for defendant, with all the others, and “the jury then and there declared their verdict for the defendant.” It appeal's that the jurors were asked, in court, if it was their verdict, and he, with the others, answered in the affirmative. It also appears that he was of the opinion that the plaintiff should recover; that he cast his ballot as he did for the purpose of “getting the jury to considér the evidence and instructions.” It also appears that the jury was out only about five minutes. This is an attempt to show that the juror did not assent to the verdict. That a verdict cannot be impeached in that manner, see Garretty v. Brazell, 34 Iowa, 100; Wright v. Telegraph Co., 20 Iowa, 195; Brown v. Cole, 45 Iowa, 601; Ward v. Thompson, 48 Iowa, 588. The matters of which complaint is made inhere in the verdict. The evi-, deuce had been presented in the presence of the jury, [513] and the instructions had been read to them. There was no misconduct, except it be on the part of the juror who made the .affidavit. If he did not agree to the verdict, as an honest man, he should have refused his assent both in the jury room and in court He agreed to the verdict, and the result is conclusive. The judgment is affirmed.