In his answer, defendant denied that an account had been stated between himself and plaintiff, and charged fraud.
The charge of fraud is unsupported. The only issue, therefore, was whether or not an account had been stated. Whether the supplies had been used by White, or that White had received a surplus applicable to the claim of plaintiff, or that he was entitled to discounts, if relevant at all, were only so for the purpose of tending to establish, or not, the cause of action made by the pleadings.
It is claimed that a material conflict exists in the evidence touching the promise of defendant to pay the account, and for that reason the verdict should not be disturbed. It was unnecessary for Quinn to show an express promise to pay. An implied promise from which the inference could legitimately be drawn that the account was correct was as good. Upon this view Quinn testified, and it was uncontradicted, that White said that, if he were given a day or two, he would *Page 50 secure its payment. In this condition of the case, White's testimony that he never promised to pay the account became immaterial, and did not raise a conflict.
Attention is again directed to the ruling of the district court requiring counsel for respondent to reduce to writing testimony sought to be adduced upon the cross-examination of plaintiff.
A reexamination has convinced us that our opinion is correct.
As a further reason, it may be added that the record fails to show what was expected to be proven by the witness.
"In order to determine whether prejudice resulted to defendant by reason of the exclusion of the evidence, the answer, or the facts that they tend to establish, should appear in the record." (Jenks v. The Knotts M.Co., 58 Iowa, 549.)
Rehearing denied.