tary of state and sent to the county treasurers of the several counties. Giving the defendant the benefit of every doubt, it does not appear, nor did he offer to prove, that had he made timely application, he would not have received his number plates by the time he desired, as he says, to run his car. Had he complied with the law on his part, it is entirely problematical, so far as this record is concerned, whether he would have received his official receipt and number plates within time to answer his purposes or not. Being a long time, in default himself, he is not, in my judgment, entitled to now rely upon what he claims was the subsequent default of another. It was easy for defendant to comply with the law as to re

Is compelled to rely upon the default of an- I should have been apportioned by the secreother as an excuse for his act. This I do not think he is legally entitled to do. The statute is not absurd even if it be construed as the state contends it should be. It may be burdensome, but that is no reason for setting aside a valid police regulation. All police regulations are more or less burdensome, and interfere with what some men think is their personal liberty, but this is no reason for setting them aside or declaring them invalid. Police regulations are for the common good, and although burdensome on the individual, the greater good to all is deemed paramount to individual convenience. Better allow these dangerous machines to remain in their stables for a time, even if the secretary of state be somewhat negligent, than to endanger life and prop- | registration. He did not do so, and it is a erty.

It is said the old number would sufficiently identify the defendant. If so, why require a change of number and a change of color each year? To such identification it would be necessary for one desirous of identification to notice, not only the number, but the color or shape of the plate, or perhaps both, and this although the night might be dark and the color obscured by dust. At any rate the law prescribes what the identification plates shall be for each year, and the owner or driver has no power to substitute another, even though it might be his name and address in large letters or figures, conspicuously painted or displayed. The doctrine of impossibility is not in the case, and the statute is not unreasonable in its terms.

The secretary of state is not relieved of liability to one injured in any way for the nonperformance of his duties, and he cannot, in my opinion, either by action or inaction, intentional or unintentional, relieve another from his duty to observe a proper police regulation of the state.

familiar principle of law that one cannot profit from his own wrong or complain of the neglect of another when he himself is also in default.

What exceptions might be made, by judicial construction, to the rule of the statute, were the defendant himself not in default there is no occasion now to decide, and indeed I think we should not decide it until a proper case arises. According to defendant's own admission, he was guilty of a violation of the law, because he commenced running his machine on the day he sent his draft to the secretary of state, without waiting to know whether it would be accepted or not. In such circumstances, particularly where, as here, he was himself in default for many weeks, if not months, I do not feel that we should set aside a statute by introducing questionable exceptions to the rules therein provided, for the general good of all.

It is an old maxim, and a true one, that "hard cases are likely to make bad laws," but to my mind this is not a hard case. It is one arising solely, so far as this record But aside from all of this, and as com- is concerned, out of defendant's own default. pletely answering, to my mind, every claim It is entirely probable that, had defendant made for and on behalf of the defendant, made his application in time, it would have whether in argument of his counsel or oth- received prompt attention, and not a vioerwise, is the fact, conceded of record, that lent presumption to indulge that there was defendant himself was at all times at fault, an adequate force in the office of the secreand therefore in no position to take advan- tary of state, from January down to the tage of any delay, if there were any, on time these matters were turned over to the the part of the secretary of state. His re- county attorneys, to have reasonably taken registration was due not later than January care of all applications. Surely there is no 1, 1913, and he did not make application un-proof to the contrary, and every presumption til April 26th. His taxes were delinquent, is indulged in favor of the acts of a public under the old law 30 days after January 1st, and under, the new, 60 days after January 1st. His name, if the secretary of state did his duty, was in the hands of the county attorney on February 1, 1913, and the County attorney should have proceeded to collect his tax or require the re-registration at once. Giving the defendant even the 60 days of grace, to wit, until March 1, 1913, he did not do anything until April 26th,

official.

Moreover, after these matters are turned over to the county attorneys, there is an implication, at least, that they are to collect the taxes or re-registration fees (doubtless with some compensation for their work), and if money is thereafter sent to the secretary of state, he would of necessity have to be given time to investigate and to take the matter up with the county attorney interest

ion.

[Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 2149-2185; Dec. Dig. § 471.*] 5. CONTRACTS (§ 349*) - EVIDENCE - COMPE

compensation. Again, we may well assume | him to have remained there during the rest of the that after these matters are turned over to time, under the conditions as they were, withthe county attorneys, the office force in the out the cattle calls for a fact and not an opinautomobile department of the secretary's office might be materially decreased. All of these things should, under any theory, be given weight; but according to the majority opinion, as I understand it, defendant practically goes acquit, because he was not required to do the impossible, that is, to run his automobile according to law.

TENCY.

the surrender of the lease and the contemporary The question was competent as bearing on settlement claimed by defendant to bar a recovery for the breach of contract.

[Ed. Note. For other cases, see Contracts, Cent. Dig. §§ 1096, 1781-1784, 1788-1798, 1809, 1811-1814, 1817, 1818; Dec. Dig. § 349.*] 6. APPEAL AND ERROR (§ 204*) — QUESTION The objection that a question was immaterial, not made at the trial, will not be consider

NOT RAISED BELOW.

As already indicated I would not be so much concerned over the rule announced by the majority were it not for the fact that, so far as this record shows, the defendant himself brought about the very things of which he complains, was himself in defaulted on appeal. without any shadow of excuse, and persisted in running his machine contrary to a valid police regulation of the state. I would affirm the judgment on defendant's own statement of the facts.

WITTHAUER v. WHEELER. (No. 29494.)
(Supreme Court of Iowa. Dec. 18, 1914.)
1. EVIDENCE (8 441*)-PAROL EVIDENCE-AD-

MISSIBILITY.

Where the lease of a stock ranch provided for its cultivation and for payment of rent by part of the crop, and made no reference to the business of stock raising thereon, parol evidence of a contract between the lessor and lessee, made on or before the execution of the lease and to induce its execution by the lessec, whereby the lessor agreed to furnish certain stock which the lessee was to care for upon the ranch for one-half of the increase, was competent, as tending to show an agreement which did not vary or affect the terms of the lease, but was independent of it, and therefore not in conflict with the rule that parol evidence cannot be admitted to vary, contradict, or change the terms of a written contract.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. $$ 1719, 1723-1763, 1765-1845, 2030-2047; Dec. Dig. § 441.*] 2. FRAUDS, STATUTE OF (§ 44*)-PAROL EVIDENCE-CONTRACT-TIME OF PERFORMANCE.

Evidence of an oral agreement by a lessor to furnish stock on a farm for the use of his lessee is not incompetent as tending to prove a contract not to be performed within one year, as performance was required during the season and therefore within one year.

[Ed. Note.-For other cases, see Frauds, Statute of, Cent. Dig. § 66; Dec. Dig. § 44.*] 3. APPEAL AND ERROR (§ 1053*) - HARMLESS ERROR-ADMISSION OF EVIDENCE-INSTRUC

TION.

In an action for breach of contract, to recover contemplated profits, the erroneous admission of evidence as to the value of personal services performed under the contract was without prejudice, in view of the instruction restricting recovery to that only which the evidence showed would have been the profits.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4178-4184; Dec. Dig. § 1053.*]

4. EVIDENCE (§ 471*)-COMPETENCY-OPINION. In an action for breach of contract to furnish cattle to plaintiff to raise on a stock farm leased from defendant, a question asked plaintiff, whether it would have been possible for

[Ed. Note.-For other cases, see Appeal and 1278, 1280, 1569; Dec. Dig. § 204.*] Error, Cent. Dig. §§ 1149, 1258-1272, 1274–

7. COMPROMISE AND SETTLEMENT (§ 24*)—EVIDENCE QUESTION FOR JURY.

Under the evidence in regard to a settlement between the parties to a lease, the question whether it was a settlement of all demands was for the jury.

[Ed. Note. For other cases, see Compromise and Settlement, Cent. Dig. § 95; Dec. Dig. § 24.*]

Appeal from District Court, Shelby County; O. D. Wheeler, Judge.

Action for damages for breach of contract to furnish cattle to be kept for share of increase on a ranch leased by plaintiff from defendant, and for damages resulting from a failure of the landlord to furnish water supply. From a verdict and judgment for plaintiff, the defendant appeals. Affirmed.

Byers & Byers, of Harlan, and Clark, Byers & Hutchinson, of Des Moines, for appellant. Kimball & Peterson, of Council Bluffs, and Edward S. White, of Harlan, for appel

lee.

WITHROW, J. I. The defendant, as the owner of a ranch of 2,400 acres in Colorado, entered into negotiations with the plaintiff, as a result of which lease was made between the parties in March, 1910. The lease covered a period of two years from March 1, 1910, and provided for a crop rent of onethird. It was stated in the instrument that the premises were to be used as a farm and a stock ranch, and for no other purpose, and was stipulated that if sale was made of the premises before March 1, 1911, the tenant would not be required to pay rent. There were also conditions as to repairs upon the premises, which have bearing upon one branch of the case as brought, and which will, in that connection, be stated. The cause of action as claimed by plaintiff is that on or before March 10, 1910, the defendant orally agreed with him that if plaintiff would enter into a written lease for the Colorado ranch, the defendant would stock

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

evidence, over the objection that it was in-. competent as tending to vary the terms of a written contract, and that by the execution of the written lease all prior or contemporaneous oral agreements were merged in it, is made the basis of many of the assignments of error. They raise the question of first importance in the case. The rule that parol evidence cannot be admitted to vary, contradict, or change the terms of a written contract is of general recognition; but it is not so broad in its application as to exclude proof of prior or contemporaneous oral agreements, which are either independent of the written agreement, or not in contradiction or variance with its terms, or such as relate to matters as to which the written contract is silent. Canfield Lumber Co. v. Kint, 148 Iowa, 207, 127 N. W. 70; Wells v. Coal Co., 137 Iowa, 542, 114 N. W. 1076; Mt. Vernon Stone Co. v. Sheely, 114 Iowa, 313, 86 N. W. 301; Harvey v. Henry, 108 Iowa, 168, 78 N. W. 850; Murdy v. Skyles, 101 Iowa, 549, 70 N. W. 714, 63 Am, St. Rep. 411. The foregoing are but a few of the cases decided by this court in which the distinction is noted. If the effect of offered testimony is to ingraft upon the written contract a condition or provision in conflict with its terms, it must be admitted that under the general rule such oral testimony would not be competent, But when it tends to add to the agreement another contract, without changing any of the rights or obligations fixed by the written contract, the admissibility of such testimony is recognized.

the same; that he would place upon the the written lease. The introduction of this ranch at least two car loads of Hereford heifers and one bull, and that plaintiff should have one-half of the increase derived from said cattle, in consideration of his feeding, caring for, and keeping them. He pleads that in pursuance of such verbal contract the plaintiff signed the lease, sold his property in Iowa at a sacrifice, and with his family moved out to the ranch; that he raised large quantities of grass, pasturage, and crops, and was at all times able, ready, and willing to perform all the terms of his contract, but that the defendant failed, neglected, and refused to furnish or place said cattle on the ranch as agreed, to his damage in the sum of $5,000. In another count of the petition the plaintiff pleads the lease, and a failure by the defendant to maintain the premises in a proper and suitable manner; that the well and windmill upon which plaintiff depended for water were not sufficient or in condition to supply him with water, and he was obliged to haul water, and expend time, money, and labor in so doing, and in fixing the well. He pleads that under the lease it was the duty of the defendant to furnish all material necessary to keep the fences and building in good repair, but that he failed to so do, and the same were untenantable, and that by reason of such matters plaintiff was unable to remain upon the premises, and carry out the terms of the lease, and was obliged to expend time and money in making repairs, to his damage, in the sum of $200. The answer of the defendant admits the execution of the written lease. It further pleads that in October, 1910, plaintiff and defendant made full settlement of all matters growing out of the leasing of the premises, and that plaintiff surrendered the lease and abandoned the ranch. It is denied that any other contract or agreement was made with reference to the premises than that which is shown by the written lease. The trial resulted in a verdict and judgment for the plaintiff, and the defendant appeals.

[1] II. Against the objections of the defendant, this appellant, evidence was admitted of conversations between the parties prior to the execution of the written lease, which as claimed resulted in an agreement between them that appellant was to stock the ranch with cattle which were to be cared for by the appellee, and the increase of the same was to be divided between them. In addition to the testimony of conversations were many letters written by the appellant to the appellee, some before and others after the execution of the written lease, in which this matter was referred to; and from these statements, if competent evidence, there was full support for the finding of the jury, which necessarily inhered in the verdict returned, that an agreement to that effect was entered into

The lease which was executed covered 2,400 acres of land, less than 200 acres of which, according to the evidence, was fenced and under cultivation. The instrument stated that the leased land was to be used as a farm and stock ranch, and fixed the part of the crop product which was to be set apart to the landlord as rent. In it was no reference to any agreement between the parties as to jointly conducting the business of raising stock, nor was there any condition or requirement of the lease which would be in any way affected by proof of such an agreement unless it be that which provided for the amount of rent which should be paid. But whatever the result of the stock venture, were it undertaken, it could not change any of the obligations of the written contract of lease, but was in its very nature independent of them. The landlord was bound by it to do certain things; likewise the tenant was charged with the payment of rent as a share of the crops, and with other duties and obligations, and as to neither party would any change in such rights or duties arise in performing the parol contract. In this respect lies the difference and the exception which brings the case outside the rule relied upon by the appellant, and in support of which, as

case, is cited. Lerch v. Times Co., 91 Iowa, | the contract, which was finally reduced to 750, 60 N. W. 611, Kelly v. C., M. & St. P. writing. The case is not controlling here. Ry., 93 Iowa, 436, 61 N. W. 957, and Jessup v. C. & N. W. Ry., 99 Iowa, 189, 68 N. W. 673.

The claim in that count was for expenditures | to whether it would have been possible for made and labor performed in fixing the well, you to have remained there during the rest and in making repairs and for hauling water. of the time under the conditions as they The contract of lease provided that the les- were, without the cattle?" to which he ansee should do the work necessary to keep the swered that he could not have done so. The fences and building in repair, the landlord question was objected to as incompetent, to furnish the material. It appears from the calling for an opinion and as leading. The evidence that whatever services were render-question called for a fact rather than an ed by the appellee in the repair of the well and pump were paid for by the appellant; and the only other claim under that count as allowed to be considered by the trial court was for the value of services in hauling water if certain necessary facts were established. An examination of the proof shows it to be so indefinite as to the amount of time spent by the son in such work as to afford no basis for calculation. As to the father, it appears in the evidence that he hauled water at intervals from the 1st of April until May 16th, a little while in June or July, and about three weeks in August, hauling three days out of the week, and he stated that the time of himself and team for so doing was worth $4 a day. While from this evidence the jury might ascertain the reasonable value of the time so used by the appellee, that does not reach to the testimony given as to the value of his time on the ranch, which was independent of that which related to hauling water.

opinion, as to whether the plaintiff could do a thing under existing conditions. In admitting the answer over the objection there was no reversible error. It is claimed, however, that it was incompetent and immaterial, because the real question was as to the contract, its breach and the damages. The objection that it was immaterial was not made at the trial. We think it was competent, not only as a circumstance in the case, but also as bearing upon the surrender of the lease, and the settlement which is claimed by the appellant to have been made, and which is pleaded as a bar to any recovery for alleged breach of contract.

[7] VI. Prior to October, 1910, the plaintiff had determined to leave the farm. There had been correspondence between the parties, and appellant was advised of such intention. In the month of October appellant called at the farm and met Mrs. Witthauer, her husband being away. The appellant testified that he left with her a paper, signed by himself, consenting to the sale of the crops upon surrender of the lease, and giving to the purchaser the right to put his stock

testified that he told her he was willing to consent to the sale of the crop, and that if they would consent to leave the ranch and surrender the lease he would give them all the crops for 1910, and the money he had sent them; that they were to exchange receipts in full for all demands. He said he was to leave them at the bank, and that he did leave there his own receipt in full for crop rent, releasing the tenant from crop rent and further obligation under the lease, upon surrender of the lease. Mrs. Witthauer testified that at the time the appel

But it is claimed that in submitting the case to the jury the trial court only allowed to be considered as damages for the breach of the contract that which the evidence show-in the field to consume the crop. He also ed as the profits which would have resulted to the plaintiff from that source, and that the evidence as to the value of services was therefore without prejudice, even though erroneously admitted. This court has held in Cox v. Cline, 147 Iowa, 353, 126 N. W. 330, and in Barger v. Brown, 143 N. W. 496, cases cited by the appellee, that there was no prejudicial error in admitting testimony which did not go to a question at issue. That rule is based upon the further one that it must appear that the result would have been the same if the evidence had been excluded. Brayley v. Ross, 33 Iowa, 505; Be-lant was at the house he had only the paper lair v. C. & N. W., 43 Iowa, 662; Hubbard v. Mason City, 60 Iowa, 400, 14 N. W. 772. The instruction as to the measure of damages for the breach of the contract allowed recovery only of that which the evidence showed would be the profits, and did not include as an element the value of the personal services of the plaintiff or his son. Under that instruction, whatever services would have been rendered would be compensated in the profits, if any; and, if there were none, they would have been uncompensated, their value having no bearing upon the right or amount of recovery. While the evidence was erroneously admitted, we think it clear that no prejudice resulted from it.

[4-6] V. In his redirect examination the plaintiff was asked, "What do you say as

permitting the sale of the crop; that there was no conversation about other papers than that. Witthauer testified that he signed no receipt, and none purporting to bear his signature was introduced in evidence. He sold the crop to one Moore, and showed to him a paper similar in terms, but not identical, with the one showed to Mrs. Witthauer, which had been given to him by the banker who was in some matters representing Wheeler. The second paper provided for the delivery of the lease, and this he testified was not done because he did not have it. He said he sold the crop in pursuance of the talk had at his home between Wheeler and Mrs. Witthauer. The claim of the appellant is that the facts show a settlement which covered all demands of the parties, and that