Stevens v. Taylor

Eothrook, J.

1. LEASE: parol change: evidence to sustain the verdict. I. It is claimed that the verdict is not sustained by the evidence. We think otherwise. The jury may fairly have found under the evidence that the plaintiff and the defendant entered intoaverbal agreement, by which the plaintiff undertook to harvest his share of the crop and the defendant agreed to pay him 2¿ cents a bushel for doing so. We need not discuss the testimony as given by the witnesses.

2. PRACTICE: exception must be specific. II. The appellant contends that the court erred in its instructions to the jury, by failing to state therein that the verbal contract made between the parties would be r invahcl and of no force, unless it was shown that t]iiere SOme consideration therefor.

The record does not disclose that any exceptions were taken to the instructions when given. And no reason is given for the exceptions ip the motion for a new’ trial, as required by section 2789 of the Code. See Hall v. Gibbs, 43 Iowa, 380 .

It is true it is stated in a motion for a new trial that “the court erred in its charge to the jury, e'xcepted to at the time by the plaintiff.” This is no more than the plaintiff’s statement, in a general way, that he excepted to the charge at the time it was made. If the motion for a new trial does not state the ground of exception, and exceptions made at the time the instructions are given are relied upon, the record made when the instructions were given should show the exceptions and show what part of the charge is excepted to.

3. LEASE: verbal agreement: consideration. III. But even if the exceptions were properly taken we do not think the instructions were erroneous. It was competellt for the plaintiff to waive the husking and delivery °f the corn without any consideration, Suppose the parties met in the field at the time *666 tlie corn should be gathered and the plaintiff agreed with the defendant that he (the defendant) need, give himself no further concern about the rent corn, that he (the plaintiff) would gather it himself, and thereupon the plaintiff did gather part of it and quit, because of storm or snow. Ought the plaintiff under such circumstances to recover damages of the defendant? We think not.

The plaintiff ought not to be allowed to thus interfere with the performance of the contract and take the work upon himself, and then recover damages because the defendant failed to husk and crib the corn. The jury found that the defendant was discharged from his obligation to gather the crop, because of the subsequent arrangement, and we believe that they were warranted in finding from the evidence that the plaintiff waived the performance and undertook to harvest, and did harvest, at least a part of his share.

Affirmed.