On Motion for Rehearing.
[13] The zeal and evident good faith with which counsel for appellant have insisted in their motion for rehearing that this court erred in not sustaining appellant’s assignment of error as to the exclusion of the evidence of the witness McLean, wherein he stated, “I did not in any manner undertake to compel Mrs. Hunt to give Souther the goods in question,” constrains us to write this additional opinion in said case. Appellant cites in support of his contention the cases of Boddy v. Henry, 113 Iowa, 462, 85 N. W. 771, 53 L. R. A. 769, and Wimple v. Patterson, 117 S. W. 1034. These cases were actions for deceit, in which it was necessary to show, not only the falsity of the representations made, but also that defendants knew such representations to be false, and made them with intent to deceive. In this case appellees’ cause of action does not rest upon the proposition that the witness McLean intended to force Mrs. Hunt to give up the goods. The intent of appellant may be considered material upon the issue of exemplary damages; but, as to the witness McLean, the issue is not as to his intent, but as to his acts.
We do not think that appellant would have been injured by the exclusion of the answer of the witness McLean, even had it been admissible, for the reason that, if the jury believed his statement as to what occurred, they could not reasonably have concluded that it was the purpose and intent of McLean to compel Mrs. Hunt to deliver the goods. It is evident from .the verdict that the jury believed Mrs. Hunt, and not McLean, as to what occurred, and we do not think that McLean’s testimony would have been strengthened in the estimation of the jury by his being permitted to state what was his purpose in the transaction.
We do not think said evidence was admissible'for the further reason that the word “undertake” was not used by the witness in the sense of “purpose” or “intent,” but rather in the sense that he did no act calculated to effect such purpose; and, if so, the evidence sought was but the expression of an opinion by the witness, and for that reason not admissible. It is as if one should say: “I went with the purpose and intent of doing so and so, but I did not undertake to carry my purpose into effect.” That the word “undertake” was used by the witness in this sense is further evidenced by the interrogatory propounded to said witness, which is as follows: “Did you in any manner undertake to compel Mrs. Hunt to deliver the property to the defendant Alta Souther? If so, state what you said and did, giving the particulars.” The witness was permitted to give all the particulars.
[14] Again, if the word “undertake” was used by the witness as synonymous with “purpose,” we do not think the exclusion of this answer was reversible error for the further reason that the witness was permitted to, and did, testify as to his purpose. 1-Ie said: “I told Mrs. Hunt that I was an officer, but that I was not there for the purpose of forcing her to give up these goods. * * * I told her that I was not there for the purpose of using my official authority in taking the goods or to cause her to give them up. * * * I told her that she would not have to give Mr. Souther the goods unless she wanted to.”
The motion for rehearing is overruled.