— Appellants insist that the notes and mortgage in question were delivered by them, and received by appellees, as an absolute payment, to the amount of eight hundred dollars. Appellees claim that they were received conditionally, to be credited to appellants if found to be satisfactory, otherwise to be returned ; that appellants had the right to return the goods when notified that the notes and mortgage were not satisfactory; and that, having failed to exercise that right, or make other arrangements for payment, they are liable for the agreed price of the goods.
1. Sale: conditional: failure of condition money demand: evidence. I. Appellants contend that, since the original petition of appellees sought to recover for an absolute sa^e goods, while the proof submitted tended to show a conditional sale, the cause action set out in the petition was wholly unsupported by the evidence, and therefore that their motion to instruct the jury in their favor should have been sustained. We do not think this view is correct. If the facts were as claimed by appellees, when defendants failed to return the goods or make other arrangements to pay for them, the original transaction ripened into an absolute sale, and appellants’ liability to pay the agreed price in money thereby became fixed. ‘ ‘ Ultimate facts alone should be pleaded, and not the evidence which tends to prove such facts.” Barbee v. Hamilton, 67 Iowa, 420. We think the allegations of the original petition were sufficiently broad to allow a recovery on the evidence submitted. Haywood v. Woods, 28 Iowa, 563. But it is said that the facts pleaded were not sufficient to apprise defendants of the evidence to expect, and that they were surprised by evidence improperly admitted to sustain an agreement set out for the first time in the amendment. That is hardly possible, for the reason that they put the facts involved in the transfer of the notes and mortgage in issue by their answer. Cook v. Smith, 54 Iowa, 636.
*4952. Continuance: diligence. 3. Amendment: time to answer: when not granted. *494II. It is said that the court erred in not allowing defendants time to procure the testimony of Preston, and *495to prepare an answer and defense to the amendment to the petition. The offering of evidence was closed on the ninth day of July, 1887. The counter-affidavits filed by plaintiffs show that Preston was then in Cedar Rapids, and that his attendance at the trial could have been procured by the use of due diligence. It is also shown that he was in the city on the seventh day of the same month, when a subpoena was -issued for him. In our opinion due diligence to procure his testimony was not shown, nor was there merit in the application for a continuance to Prepare an -answer and defense to the amendment. From the nature of the issues, defendants must have been apprised that they would need to show all the facts in regard to the transfer of the notes and mortgage. We are inclined to the opinion that the amendment was not in fact material. Cook v. Smith, supra; Lemke v. Daegling, 52 Wis. 501. But, however that may be, there is nothing in the record to justify the claim that additional time was needed by defendants to enable them to present the merits of their defense. The record shows that the case was tried on the part of the plaintiffs, from the beginning, on the theory disclosed by the amendment. Therefore, we think the court properly refused the time asked.
4. Instruction: as to theory not raised. III. Appellants complain of the sixth and eighth paragraphs of the charge to the jury, on the ground that they ignore certain testimony of two witnesses, which it is claimed shows that the notes and mortgage were to be retained, and credit given therefor if they proved to be as represented by defendants. But the testimony of these witnesses, taken as a whole, does not sustain the claim of appellants in regard to it. Detached portions of their testimony alone tend to sustain it. The court was under no obligation to instruct the jury in regard to a theory not raised by the pleadings, nor claimed to be true by either party, nor sustained by the testimony of any witness.
*4965. Estoppel: by silence: evidence. IY. Appellants complain that the court excluded evidence of a conversation between one of the defendants arL(^ a person, in the presence and hearing of one of the plaintiffs, had on the day the agreement of sale was made, and before the delivery of the goods. It is claimed that if the terms of sale were stated in that conversation substantially as they are now claimed to be by defendants, and the plaintiff who heard it remained silent, his silence would have been evidence of assent. It is true that, under some circumstances, the silence of a person whose duty it is to speak may operate as an estoppel. In this case it was not proposed to show that the agreement had been fully settled when the conversation was had, nor that the plaintiff who heard it in fact remained silent, nor that he knew at that time the terms of the agreement. On the contrary, it is shown that he did not make the agreement, and only knew its terms from what a partner told him. It does not appear that he was under any obligation, morally or otherwise, to speak; hence we conclude there was no error, in excluding evidence of the conversation.
appeal. 6. Practice: misconduct of counsel: duty and discretion of trial court: appeal. Y. Appellants insist that there was such misconduct during the trial, on the part of one or more of the counsel for plaintiffs, as to warrant a new A defendant was asked, on cross-examination, in regard to a farm notin any manner involved in the case, “Isthat the trial farm he placed a sixteen hundred dollar attachment 'on, that you swindled him out of?” It appears that the person referred to in the question, as having secured an attachment of the farm, was the one to whom defendants had sold their merchandising business after the transactions involved in this action. YYe discover no ground in. the record for the question. Before it was answered, it was withdrawn.
One of the attorneys for plaintiffs, in his opening remarks to the jury, stated that “the Swaffords are traders ; they traffic; they beat somebody; ” and other matters, — some of which were shown to be true by the *497record. Some statements, to which counsel for appellants object, were also made by the attorney who made the closing argument to the jury for plaintiffs; but we cannot say that they were not justified, by the record. It is improper and censurable practice for an attorney to make statements, designed to prejudice a party to the suit, which are not justified by the record in the case; and a question which charges dishonesty may be as prejudicial as a direct statement to the same effect, even though unanswered. Courts should require attorneys to observe this well-established rule of practice; and,' when it is violated, should not hesitate to set aside the verdict, unless satisfied that the misconduct was not instrumental in securing it. But an application to set aside a verdict, on the ground of misconduct of counsel, must be determined by the trial court in the exercise of a sound legal discretion. Hammond v. Sioux City & P. Ry. Co., 49 Iowa, 453. The verdict in this case seems to be sustained by the evidence, and we are not prepared to say that there was any abuse of discretion by the court below.
VI. Counsel have discussed the rulings of the court in regard to the admission of evidence ; the sufficiency of the evidence to sustain certain special findings and the verdict. Some of the questions thus argued are disposed of by what we have already said. As to the remainder, it is sufficient to say that we have examined the record with care, and discover no error of a nature to prejudice appellants. The judgment of the superior court is
Aketbmed.