#### John W. Hess v. C. S. Lucas, Appellant.

Evidence. A writing which forms part of the history of the case 1 and indicates the relative interests of the parties in the subject-matter of the suit is admissible in evidence.

Evidence: letters. In an action on an oral contract for one-half 2 the sum recovered in a previous suit, a letter of defendant offering to sell his interest in the case because cf lack of funds to pay expenses, is admissible on the issue as to who was to pay the costs; and one impliedly admitting the duty of settling with plaintiff is also held admissible.

Evidence Stricken Out. Evidence which has been stricken from 3 the record cannot be said to be before the jury so as to raise the question of its admissibility.

Instructions: when not prejudicial. An instruction relating to '4 an issue not raised by tne pleadings or evidence, and refusal to submit a requested instruction, though proper; do not constitute prejudicial error, where the jury finds in accordance with the contention of the party complaining of the instruction.

Instructions. AYhere the pleadings and proof of plaintiff show that 5 parties jointly interested in a judgment agreed to bring the suit, divide the expenses, and share the net recovery, an instruction in an action on the agreement that the expenses were to be deducted from the amount of the recovery and the balance divided between them, was warranted.

*Appeal from Johnson District Court.*— Hon. M. J. Wade, Judge.

Monday, February 1, 1904.

Action on oral contract, to recover one-half net amount obtained from a railroad company for damages to a stallion. Verdict for plaintiff, upon which judgment was entered. The defendant *appeals.*

Affirmed.

*Baker & Ball*for appellant.

*Ranck & Bradley*for appellee.

Ladd, J.

In 1896 the defendant, Lucas, was owner of a pedigreed stallion known as “Larry Ginter,” and on the 16th *518of December, that year, entered into a contract with plaintiff, Hess, by the terms of which the latter agreed to ship the horse to one Fuller to be trained, and, if the horse should develop into a “fast and consistent performer,” to be campaigned “during the racing season of 1897 so long as said horse remains in racing condition.” Plaintiff was to advance all expenses, and the money, if any, won at the races, was to be first applied thereon, and the balance, if any, remaining, was to be equally divided. On April 27, 1897, the contract was extended until November' 1, 1898. In shipping the horse from Iowa City to Cedar Bapids, over the Burlington, Cedar Bapids & Northern Bailway, October 4, 1898, it was injured, and, in a subsequent action against the-company, the sum of $1,800 recovered as damages. *Lucas v. Ry. Co.,*112 Iowa, 594. To recover a portion of this judgment paid to defendant, and the value of some articles alleged to have been converted to his own use by defendant, is the object of this action. The plaintiff contends that -immediately after the injury he entered into an arrangement with defendant, by which suit against the railroad company was to be brought; that each should pay one-half the costs and expenses, along as necessary in the prosecution; and that these should be deducted from the amount recovered, and the net proceeds equally divided. On the other hand, defendant insists that Hess agreed to pay all costs and expenses, including attorney’s fees, and, as a consideration, was to receive one-half the amount recovered; that he failed and refused to do so, though repeatedly requested; and' that, by reason of such failure, he forfeited and repudiated the contract, and ought not to recover.

I. The contracts first mentioned were received in evidence over the defendant’s objections. We think they were admissible as a part of the history of the case, and as indicating: 1. Evidence. the relative interests of the parties in the . . . . *n*horse at the time it was injured, ihe piaintitt was then bailee of the horse, and was entitled to it§ possession until November *1,*1898, although not required, under *519the terms of the contract to make advances of expenses incident to its training when not in “racing condition.” That he might have maintained an action for the loss of its use occasioned by the accident seems hardly open to question. This being true, their respective interests in the animal were proper matter of proof, as bearing upon the controversy under investigation.

II. Exception is also taken to the admission in evidence of four letters written to Hess by Lucas. The first two speak of “our case,” and mention matters in connection with 2. Evidence: letters. but have little or no bearing on the issues tried. These could not have worked prejudice. In that of October 16, 1899, he proposed to sell his interest in the case, adding: “I would like to sell out as I have not the money to fight them or pay what is due on the case now.” This was inconsistent with the claim that plaintiff was to pay all costs and expenses, and for that reason the letter was rightfully received in evidence. The letter of February 12, 1901, was written after the payment of the judgment, and says: “I would not think of trying to make a settlement until I get this all settled for you have shown me that any time you get the best of it you will let me sweat. You speak of the depositions at great expense. Yes and I paid for them at that time. I think the only thing under the circumstances is for you to set still and let me settle this to suit myself. Jake.” This impliedly conceded the duty of .settling with Hess, but insisted upon him remaining quiet until he had adjusted the suit. It was admissible.

III. When in Ees Moines, at one time, the parties entered into a contract of settlement on condition that the claim should be compromised with the railroad company. Plaintiff 3 Evidence stricken out. allowed to testify to the conversation lead-jng Up .fo this agreement, and it was offered in evidence; the objection thereto being overruled. Whether anything beyond a mere offer was done, is not disclosed. See *State Bank of Tabor v. Brewster,*100 Iowa, 576. In any event, all this was withdrawn from the jury, for the court *520at one time thereafter ruled “testimony in regard to the settlement stricken out,” and at another said, “What transpired at Des Moines is stricken out.” In this state of the record, it cannot be said that the agreement was before the jury.

IY. In the fifth instruction the court advised the jury that, though Lucas claimed Hess had violated his contract, yet, as he had taken no steps to rescind it, the contract 4. Instruction: when not prejudicial actually made was still in force, and binding on the parties. Also, an instruction to the effect that if the agreement was as defendant claimed, and plaintiff had not advanced any of the costs and expenses he could not recover,, was requested and refused. It is probably true, as contended by appellant, that no issue as to recission was raised by the pleadings or evidence, and that the proper question for the jury’s determination was whether the plaintiff had so performed his part of the contract as to entitle him to recover on the alleged breach of defendant. But the errors, if any be conceded, in giving and refusing the instructions referred to, Avere without prejudice, for the jury especially found the contract to have been as contended by plaintiff. After explaining his computation, the court, as part of the tenth instruction, said: “So, now, Hess is entitled in this case to recover one of the following sums on this count, to-wit: $797.80, which you will allow if you find'that Hess was to pay only one-half the costs, and also that he paid $28 costs, as claimed. $772.90 if you find Hess was to pay only one-half the cost, but you do not find he paid the $28. $596.20, which will be allowed in case you find that Hess should pay all expenses, and you will find that he paid the $28; or $571.35, which will be allowed if Hess must pay all costs, and you do not find that he paid the $28 claimed. Whatever amount you find Hess entitled to under this count, you will also allow him six per cent, interest thereon from February 4, 1901.” To a special interrogatory, the jury answered that it found Hess entitled to recover $860, as hi3 share of the judgment against the railroad company. As the trial occurred May 22, 1902, the jury must have allowed *521the $797.80, wbicb, with, interest, would make this sum, and therefore have found that the agreement was not only as contended by Hess, but that $28 was advanced to Lucas for expenses in carrying on the litigation against the company. Aside from this, he had paid out $7.50 in obtaining a pedigree to be used on the trial, and $4.63 for taking his deposition. This would be conclusive as to plaintiff at least advancing one-half of the expenses, aside from attorney’s fees, and these were paid so near the day the judgment was collected as to have no bearing on the case.

V. The third instruction is criticised for saying that Hess claimed-the costs and expenses were to be deducted from the amount recovered from the company, and the balance 5 Instructions. equally divided. But this is the effect of Hess’ claim, concisely stated. He testified: “We agreed we should bring a suit and meet the necessary expenses that might be, and, in case of getting a judgment, we would deduct all the expenses and divide the net result between us. Wo talked over the expenses and attorney’s fees and costs. We were to divide them. We were to pay them as they came up, along, and they were to be taken up. I mean, C. S. ■Lucas and myself. I was to pay half of it.” And contrary to appellant’s contention, it is in harmony with the allegations of the petition, in which it is said the contract provided “that, after' deducting the expenses of said litigation, the amount received to be divided equally,between plaintiff and defendant herein.” Other instructions are criticised for proceeding on the theory that, under the agreement as claimed by plaintiff, each was to pay one-half the costs and expenses, whereas the petition alleged that “each was to contribute' to the expense of litigation.” True, the exact amount of the contribution was not averred, but, as this was indicated in plaintiff’s testimony, which was not contradictory of the allegations of the petition, it was entirely correct to instruct as the court did.

The errors, if any, in the record, appear to have been without jMojudice, and the judgment is aeeirmed.