Schroeder v. Schroeder

Sherwin, J.

The petition was in counts covering the several claims. To the count seeking recovery for services rendered the defendant there was a general denial. It was nowhere pleaded by the defendant that such services were gratuitous or performed as a member of his family, and we find nothing in the record which indicates that the case was tried below on the théory that there was such an issue. The main contest seems to have been over the question of the abandonment of the plaintiff’s life tenancy, and the defendant’s claim was that the plaintiff had surrendered it to him under a contract whereby he was to support him and to pay him a certain monthly stipend. If his theory as to this is correct, the plaintiff was hardly such a member'of his family as to raise any presumption in his favor. But in any event the relation must be pleaded, if it is relied upon. Under the issues and the procedure, there was nothing in this branch of the case that called for another instruction, or for a different instruction from No. 5 given by the court. Scott v. Morse, 54 Iowa, 732 .

There was a general denial only to the claim for personal property converted by the defendant. It is conclusively shown that he received some of it, and used and *69 sold it as his own. It belonged to the plaintiff, and, under the issues and the evidence, he was entitled to pay for it. Gary v. Association, 87 Iowa, 25 . The questions relating to the lease to, or use of the land by the defendant during the year 1899 were, we think, submitted» to the jury under proper instructions. We are of the opinion that the evidence offered as to the consideration paid by the plaintiff for his life tenancy of the land in question might properly have been received, as tending to support the defendant’s contention that the land was surrendered to him; but it would have been a slight circumstan 'e, only, and, whether conceded or denied, of no particular benefit to either party, and we will not reverse because it was not received. The verdict was for a part of the plaintiff’s aggregate claim. What particular items of the several demands were allowed we have no means of knowing, but we think each count of the petition had evidence in its support sufficient to take it to the jury.

The judgment is right, and it is aeeirmed.