
    D. A. Enslow & Son v. W. W. Ennis, Appellant.
    Evidence: admissibility: conclusion. In an action for the price 1 of goods, to which the defendant counterclaimed for delay in delivery, the evidence of defendant as to what was the result of the delay was properly excluded as calling for a conclusion; and oral evidence of the relation and agreement of the parties was also properly excluded, when the written agreement of the parties was introduced in evidence.
    Same: harmless error. The overruling of an objection to evidence 2 on cross-examination was harmless error where the answer of the witness was not prejudical.
    Same. The appellate court will not interfere with rulings excluding 3 evidence where it does not appear that if permitted it would have materially affected the case.
    Instructions: submission of issues. Refusal to submit- an issue 4 raised by the pleadings but which has no support in the evidence, is not erroneous.
    Damages: 'interest. Money due by express contract bears interest 5 from the time the same becomes due, if no other time of payment was fixed. It is not governed by the statute which provides that interest on an open account will not commence to run until the expiration of six months from the last item.
    
      Judgments. Where the evidence disclosed that defendant contracted 6 with an individual member of a firm named as plaintiff, he can not complain that judgment was rendered in favor of such individual rather than the firm.
    
      'Appeal from Wapello District Court. — Hon. D. M. Anderson, Judge.
    Wednesday, May 8, 1912.
    'Action to recover the purchase price of certain marble sold and delivered to defendant under an oral contract. The defendant admitted the making of the contract and the delivery of the marble, but by way of counterclaim asked damages on account of delay in furnishing the marble and for negligence in the manner of laying it in the building for which it was intended. There was a verdict for plaintiff in the amount of the claim, and from judgment thereon the defendant appeals.
    
    Affirmed.
    
      W. W. Cory and Tisdale & Ileindel, for appellant.
    
      Gilmore & Moon, for appellee.
   McClain, O. J.

The sole controversy in the case was on the question of the liability of plaintiff for delay in furnishing the marble and. for laying it in a defective manner. Many alleged errors are relied upon for reversal, but they may be divided into three groups, relating, first, to rulings in the admission of evidence; second, the giving of instructions; and, third, the trial of the ease and the rendition of judgment on the theory that the action was in effect brought and prosecuted by D. A. Enslow as an individual.

I. Many of the errors, formally assigned as to the admission of evidence are. not argued for the appellant otherwise than by referring to the pages and lines of the abstract where the rulings complained of appear. As eounsel for appellant think that “no useful purpose will be served by elaborating on these objections,” so we think thar no useful purpose will be served by elaborating upon them in this opinion further than to notice those rulings ‘ which are specifically commented upon in argument.

The defendant, as a witness in his own behalf, was asked what was the result of the delay in the delivery of the marble, whether the bank to which the building ivas rented to be occupied when the room was . ... completed came into it under a compromise , A or otherwise, and what was said between the witness and the president of the bank with relation to coming in before the marble was laid, and objections to these questions were sustained. The written agreement between defendant and the bank under which it commenced to pay rent on July 15, 1906, although the marble was not yet in place, was introduced in evidence, and sufficiently explained the relations between the bank and the defendant in that respect so that the conversation between defendant and the president of the bank was immaterial. The question as to the result of the delay called for a mere conclusion of the witness, and from the record it clearly appears what the consequences of the delay, if any, actually were. In these respects we find no errors in the record.

On cross-examination the defendant as a witness was asked whether at the time a certain letter of his was written after the completion of the work he did not know that the defects-in the floor were there, and an objection to this question as not proper cross-examination was overruled. We think the question was proper by ivay of cross-examination, but whether it was or not, the answer was in no way prejudicial to defendant’s case, and the ruling can not properly be made a ground for reversal.

A witness called for defendant was asked on cross-examination whether at the time-he signed a certain statement he misunderstood a reference in the statement as to what portion of the work was intended, an'¿ the objections to the questions were overruled. Thereupon defendant as a witness, being recalled, was asked to testify in his own behalf whether the former witness was present when the statement was written and whether he dictated it, and objections to these questions were sustained, as counsel contend, on the ground that they called for answers tending to impeach such witness. We think the objections were well taken, and, at any rate, it does not appear that the anwers to the questions, if given, would have been material in sustaining defendant’s ease.

II. The principal complaint as to the instructions is that in regard to damages for delay in furnishing the marble the court submitted only the question whether it was furnished within the time required by the contract, and did not leave to the jury the question whether it was furnished within a reasonable time without regard to any express stipulation in the contract. It may be that under the pleadings there was an issue as to reasonable time; but there is no evidence which would have supported a finding for the defendant that, although there was no time specified for performance in the contract, there was unreasonable delay in performing it. Therefore the court did not err in not submitting such question to the jury.

A similar complaint is made of the instruction relating to the defective method of laying the floor; but the instruction is not open to this objection, for the jury was told that, if the tiling was not laid in a good and workmanlike manner, then the defendant should be allowed the amount of damages suffered by him on that account.

The instruction as to interest is not open to the objection made that the jury should have been directed to allow interest only after six months from the. time the marble was furnished. This objection is based on the theory that the amount due plaintiff was on *hn open account, and interest would not commence to run thereon until the expiration of six months from the last item. See Code, section 3038. But it is plain that the claim of plaintiffs was for money due by express contract, and therefore interest would run from the time it became due; that is, from the time the marble was furnished, if no other time of payment was specified. The court correctly instructed to this effect.

We have examined other objections made to the instructions, but find them to be without merit.

III. Although in the title of the action the plaintiff is described as “D. A. Enslow & Son,” the case was tried and the jury instructed on the assumption that D. A. En-slow was the sole plaintiff, and the verdict _ . _ . ■» . « . -,. and judgment were m his f as an individual. In this respect the complaint is that a partnership is an entity, and that D. A. Enslow as an individual nowhere appears to be entitled to the cause .of action set out in behalf of the partnership. It does appeár, however, that the defendant contracted with D. A. Enslow and treated him throughout the transaction as the party with whom the contract was made, and D. A. Enslow, testifying as a witness, speaks throughout of the contract as made with him individually and performed by him. Moreover, while the petition is entitled in the name of “D. A. Enslow & Son,” it is not alleged therein that the plaintiff is a partnership. Therefore we have a ease wherein it appears that an individual, contracting in his own right, has used a trade name. He might sue, therefore, either in his own name or in the name used in the transaction, and the record shows that in letters written both by and to the plaintiff such trade-name was employed, and the rendering of judgment in favor of the real party in interest could not be prejudicial to the defendant. Hartkemeyer v. Griffith, 142 Iowa, 694.

Finding no error in tbe record, tbe judgment is affirmed.  