Steyer v. Dwyer.

STEYER V. DWYER.

Contract: EVIDENCE. Parol evidence is admissible for the purpose of showing that certain words used in a contract have by known and established usage acquired a signification different from their general or popular sense; as that the word "town" used in a contract, included the town and vicinity.

Appeal from Winnesheik District Court.

FRIDAY, JANUARY 27.

INJUNCTION granted upon petition, and on the trial made perpetual. Defendant appeals. The facts are stated in the opinion.

L. Bullis and Morse & Brown for the appellant.

J. T. Clark & Co. and R. Noble for the appellee.

DAY, Ch. J.-The plaintiff filed in the Winnesheik district court a petition alleging that on the 22d day of July, 1867, the plaintiff purchased of defendant a certain quarry situated in Decorah township, and that, at the same time, the plaintiff and defendant entered into the following written contract, to wit: "And it is further agreed by and between the said parties that the said Dwyer shall not go into the business of stone cutting again in the town of Decorah, unless some other person shall commence the same kind of business in competition with said Steyer, and the said Steyer is not to engage in or carry on the business of making or burning lime in said town as long as the said Dwyer is engaged in said business, or convey to others the right." The petition further alleges the performance of the contract on the part of plaintiff, and its breach by defendant, and asks for a writ of injunction and a decree making the same perpetual.

Steyer v. Dwyer.

On the 10th day of August an injunction was issued and served on defendant. On the 13th of October, 1869, the defendant answered admitting the contract and denying the breach thereof. On the trial of the cause the court entered the following decree, to wit: "That the defendant be forever and perpetually enjoined from cutting stone, and permitting the same for and to any person or persons in said town of Decorah, by himself or agents, directly or indirectly, and that he be required to refrain from entering into that business in said town or immediate vicinity thereof, until others engage therein in competition with the plaintiff."

To this decree it is objected, 1st. That the first clause restrains defendant perpetually, when the contract is conditional. 2d. The latter is too broad, as it includes the town and the vicinity, when the contract includes only the town. The first objection is without foundation. An examination of the whole decree shows, plainly, that the defendant is enjoined only until others engage in the business of stone cutting in competition with plaintiff. Nor is the decree, in our judgment, amenable to the second objection named. The legal signification of the word town, in this State, is a collection of houses. Rev.

29, subd. 16. Such, also, is here its ordinary and popular signification. Yet, quite commonly in the United States, it is used to denote the whole territory within certain limits, and as synonymous with the word township. The terms of every written instrument are to be understood in their plain, ordinary and popular sense. 1 Greenl. Ev., § 278. This rule, however, is subject to the exception that parol evidence is admissible for the purpose of showing that, in the place where the contract is made, the words employed have, by known and established usage, acquired a signification different from the general and popular sense. And parties, in making their contracts, are supposed to refer to this usage, just as they are pre

Joy v. Huit.

sumed to employ words in their usual and ordinary signification. 1 Greenl. on Ev., § 292. Pilmer v. The Branch of the State Bank at Des Moines, 16 Iowa, 322, and cases cited.

The record does not contain the evidence upon which the court below acted. It was competent for the plaintiff to prove that, where this contract was made, the word town had, by known and general usage, acquired a local and peculiar signification extending it beyond the mere idea of a collection of houses. This court will not presume, as against the judgment of the court below, that such evidence was not introduced. From such testimony the court would clearly be justified in restraining the defendant from carrying on the business of stone cutting in the vicinity of the town of Decorah.

Other objections are made to the decree, based upon the testimony introduced. As the record does not contain the evidence, these objections cannot be considered.

Affirmed.

Joy v. HUIT.

Nonsuit: AFTER APPEAL FROM JUSTICE OF THE PEACE. Where, after appeal from the judgment of a justice of the peace, the plaintiff, in the appellate court, becomes nonsuit, it is error for the court to render judgment against him, without testimony, on a set-off pleaded by the defendant, and upon which he had judgment in the justice's court.

Appeal from Mahaska Circuit Court.

FRIDAY, JANUARY 27.

THE plaintiff commenced an action without petition, before a justice of the peace, claiming of the defendant the sum of $95. The defendant filed answer in general denial, and claiming $98.80, as a set-off. The cause was

Joy v. Huit.

tried before Justice McCarter, on the 11th day of December, 1869, and on the 14th day of December judgment was rendered in favor of the defendant for $46. From this judgment the plaintiff appealed to the circuit court. On the 21st day of September, 1870, the cause being called in regular order for trial in the circuit court, the plaintiff elected to become nonsuit.

Thereupon the court, upon mere inspection of the transcript, and without any testimony rendered judgment against plaintiff for the sum of $46, with interest at ten per cent, and costs.

The plaintiff appeals, and assigns for error the entering of judgment against him without evidence.

Z. T. Fisher for the appellant.

No appearance for the appellee.

DAY, Ch. J.— In rendering judgment in favor of defendant, without proof of the amount of his demand, the court erred. The defendant, with reference to his set-off, was placed in the attitude of a plaintiff. Upon him was the burden of proving the justness and amount of his demand. If the plaintiff had proceeded with his action, it is clear that the defendant could not have recovered upon his set-off without proof. Upon what principle does the withdrawal of the plaintiff's claim exonerate the defendant from the necessity of proving his? There having been a trial in the justice's court, a denial of the defendant's set-off is presumed. Brock v. Manatt, 5 Iowa, 270; Heath v. Coltenback, id. 490. And even if the plaintiff, in respect to the defendant's set-off, is to be considered in default, still the defendant, in order to recover more than a nominal sum, must prove his demand, and the plaintiff is entitled to cross-examine his witnesses. B. & M. R. R. Co. v. Shaw, 5 Iowa, 464; Loeber v. Delahaye & Co., 7 id. 478. The judgment of the court below is

Reversed.

The State v. Bennett.

THE STATE v. BENNETT et al.

Criminal law: ADULTERY: EVIDENCE. In a prosecution against a wife and her paramour for adultery, the husband is a competent witness for the State, and not disqualified from testifying against the wife.

Appeal from Linn District Court.

FRIDAY, JANUAry 27.

On the 13th day of June, 1870, Morgan L. Bennett, the husband of Harriet L. Bennett, filed an information before a justice of the peace of Linn county against the defendants, charging them with the crime of adultery.

At the July term of the Linn district court an indictment was returned against them for said crime. The defendants each pleaded not guilty, and demanded separate trials. Thereupon, Harriet L. Bennett being placed upon trial, the State called as a witness Morgan L. Bennett, husband of said Harriet, who had commenced the prosecution, filed the information, been examined before the grand jury, and whose name was properly indorsed on the back of the indictment, as a material witness on the part of the State. The defendant objected to the said Morgan L. Bennett being sworn as a witness on the part of the State, for the reason that, as the husband of Harriet L., he was by law disqualified to testify against her.

The objection was sustained.

acquitted, the State appeals.

The defendant being

Henry O'Connor, Attorney-General, and William G. Thompson, District Attorney, for the State.

I. M. Preston & Son for the appellee.

DAY, Ch. J. "The husband or wife shall in no case be a witness for or against the other, except in a criminal pro