
    Otis v. Elliott.
    
      Appeal from Polk Circuit Court —
    Friday, December 9 9.
    EVIDENCE.
    Action upon the following order and acceptance, to wit.: “Des Moines, Iowa, August 26, 1868,— $101.20. Mr. John A. Elliott: At ten days sight, please pay to the order of W. E. Otis $101.20, value received, and charge same to my account. J. P. Buser.” (Duly stamped.) “Accepted, to be paid when the fifth payment is due on my house, August 26,1868. John A. Elliott.”
    The plaintiff averred the drawing and accepting of the order; that it was due; that payment had been demanded and refused; that it was plaintiff’s property and wholly unpaid. The answer is in denial; and also, that, in the year 1868, the drawer, Buser, and another had contracted, in writing, to -build a house for defendant, to be paid for in equal payments. That Buser failed to comply with the contract so as to entitle him to the fifth payment, and the acceptance never became due. There was a jury trial; verdict and judgment for the defendant, and the plaintiff appeals.
    
      Eao'heo't & Olwrh for the Appellant— Witlvrow & Wright for the appellee.
   Cole, Ch. J.

The only questions made in this court arise upon the sustaining of certain objections to testimony offered by the plaintiff The defendant was called as a witness, and sworn in behalf of plaintiff, and was called to “ state whether or not the fifth payment on your house became due prior to March 20,1869.” This was objected to, because it asked for the conclusion of the witness, instead of showing a contract by which the payment was matured; and because it did not limit it to any payment due to the drawer of the order, etc. These and kindred objections were sustained to this, and to six or seven other similar questions.

There was no error in the rulings of the court. Not only were the objections technically well taken (for the question did ask for a conclusion of the witness, and fail to limit it to the payment due the drawer), but the order of proof and the instruments of evidence to establish the plaintiff’s case, if he had one, were so plain and manifest that it could hardly be regarded as an abuse of discretion by the court trying the cause, to require the plaintiff to adopt that order and means of proof. The same observations apply with equal force to the other witness, and the questions propounded to him.

Affirmed.  