Barker v. Brink
Supreme Court of Iowa
Appeal from the Jones District Court. The plaintiff instituted bis suit before a justice of tbe peace, to recover the amount of a promissory note, dated June 14th, and due November 1st, 1852. This note was, by its terms, to be paid “in stock, to be delivered at my residence, in Hale .township, on tbe first day of November next — tbe stock to be taken at tbe appraisement of two disinterested persons.”
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Appeal from the Jones District Court. The plaintiff instituted bis suit before a justice of tbe peace, to recover the amount of a promissory note, dated June 14th, and due November 1st, 1852. This note was, by its terms, to be paid “in stock, to be delivered at my residence, in Hale .township, on tbe first day of November next — tbe stock to be taken at tbe appraisement of two disinterested persons.” Tbe note was assigned to one Cbaplin, before maturity, and by him re-assigned to plaintiff, on tbe 4th of November, 1852. Before tbe justice, (as is shown from tbe transcript), tbe parties…
1Opinion of the CourtWeight, C. J.
We think this judgment must be reversed. Before the justice, the defendant relied alone upon the fact, that he had paid the note. In the district court, there was no further pleadings, nor was any other issue made. The jury, however, returned what is styled a special verdict, in which they find that there was a tender of the stock. We do not stop to inquire whether such finding is sufficient to justify a judgment for defendant, if there had been an answer setting up the tender. This may well be doubted. But when we look at the state of the pleadings, all doubt is removed. We would not hold, *484an…
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