Richmond v. Dubuque & Sioux City R. R. Co. paid therefor. And this rule was, in substance, expressed in the latter part of the instruction given by the court. As to the first part of that instruction, it expresses also the true rule as applicable to the hypothesis of fact contained in it. If the plaintiffs, in order to handle the grain which was actually furnished them, were required to and did have the hands and the power employed, which could, without further expense, also have done the additional handling of the grain which defendants wrongfully refused to allow them to handle, then they ought to recover the full price for the grain thus refused them. For then they recover according to the rule above stated, to wit, the difference between the cost of handling and the price; since, upon the hypothesis stated, the cost of handling would be nothing. And the jury have so found. There was no error, therefore, in the instructions upon the measure of damages. As to the other instructions given and refused, they were based upon the construction given the contract as herein before shown, and the errors assigned thereon have been disposed of in settling the true construction of the contract. It follows that there was no error to defendant's prejudice, and their appeal is, therefore, not sustained. As to plaintiff's appeal the judgment is As to defendant's appeal, the judgment is Reversed. Affirmed. DILLON, Ch. J.-In concurring, after some hesitation and doubt, in that portion of the opinion relating to the instructions given and refused as to the rule of damages, I desire to add that I do so in view of the state of the record, and to say that I do not understand the opinion as holding that the rule therein stated would necessarily be the true rule under a different state of facts. For instance, Preston v. Walker. were the plaintiffs notified by the defendants, that, by reason of a bridge over the river, or by reason of their preferring to transfer the grain across the river directly in the cars by running the latter to boats, they would hereafter furnish the plaintiffs with no more grain under the contract, the latter would not then be justified, as I think, in keeping a force of hands on pay, doing nothing, during the remainder of the contract term, with a view to claim one cent per bushel for each and every bushel of grain that might, during that period, pass over the defendants' road. In such a case it might be the right, if not the duty, of the plaintiffs to declare as for a total breach of the contract, and recover in one action damages for the whole contract period. And in such a case, and indeed in any case, it would be the duty of the plaintiffs not to adopt or pursue a course which would make the damages unnecessarily large. If, without such a notice, there shall be a distinct breach of the contract by the defendant, whether the plaintiffs may bring a distinct action for each car load of grain that they are wrongfully prevented from handling, or whether they can sue but once, and in that suit must claim damages for the entire space of time covered by the contract, is also a question not involved even incidentally in the present appeal, and upon which, as I understand, no opinion of the court is given or is to be inferred. 26 205 95 645 PRESTON V. Walker. 26 205 101 529 26 205 1. Practice: AS TO WHO HOLDS THE AFFIRMATIVE. While the right to review the question as to which party holds the affirmative of the 117 441 issue, and has the right of opening and closing the argument, is not absolutely denied, yet there must be a clear case of prejudice to justify a reversal upon this ground, after a trial upon the merits. 26 205 0122 236 26 205 f125 38 26 205 127 165 26 205 129 90 Preston v. Walker. 2. Interest: COMPOUND INTEREST. Where by the terms of a promissory note, the interest is to be paid annually, the payee or holder is entitled, if the interest be not paid according to the tenor of the instrument, to interest upon the interest thus annually reserved. Following Mann v. Cross, 9 Iowa, 327. 3. Practice: IRRELEVANT INSTRUCTION. A case will not be reversed upon the ground that an instruction raised an issue not in the case, when its relevancy would depend upon the character of evidence introduced, and the evidence is not all embodied in the record. Appeal from Linn District Court. TUESDAY, DECEMBER 15. PLAINTIFF declares upon three promissory notes, made in 1859, by defendant, one of them to Callista Walker, and the others to Sarah Stoddard, or bearer. They were all made in New York, and payable there. Those to Sarah Stoddard were due in three and four years, and contained these words, "and interest, the interest to be paid annually." These notes were all indorsed to plaintiff by Alfred Stoddard. The answer is, first, a denial. In the second place, plaintiff admits the execution of the notes, but claims there is nothing due thereon, because, he says, that Alfred Stoddard, who transferred the notes to plaintiff, as is alleged, after their maturity, was largely indebted in the State of New York, was about to remove west, and wishing to make some arrangement with his property, so as to have it meet his debts, transferred it to defendant, to hold as his agent, to dispose of and sell on the best terms possible, and apply the proceeds to such indebtedness, accounting for any balance to said Stoddard; that said Stoddard wishing to make some immediate arrangement with his creditors, procured defendant to make certain notes payable to divers persons, those in suit among others; that they were to be paid from the avails of prop Preston v. Walker. erty so turned over to defendant, and that if the property was not sufficient, said Stoddard was to furnish the means, and to hold defendant harmless. He then further avers a faithful application of the proceeds; a deficiency; that part of the property, he never got; that some of it was taken by the creditors of Stoddard under legal process; claims for his services, and that he has paid on other notes thus executed more than he received from the property. He also alleges, that plaintiff is not a bona fide holder for value, but that Stoddard is the party in interest. Plaintiff's claim, in substance, was, that defendant bought the property to which he refers, and that there was no agreement such as he sets up in his answer. Upon the issue joined, there was a large amount of evidence, a part of it only, however, is contained in the record. The jury found for plaintiff in the sum of $2,682.30. They also, in answer to special interrogations, found against defendant as to the circumstances alleged by him under which the notes were given. Plaintiff admitted that the verdict was excessive to the amount of $14.09, and after deducting this, defendant's motion for a new trial was overruled. Judgment on the verdict, and he appeals. Cook & Childs for the appellant. Preston & Son for the appellee. 1. PRACTICE: as to who holds the affirmative. WRIGHT, J.-I. It is first claimed that the court below erred in refusing defendant's counsel the right to open and close the argument. This right was claimed and refused, and the question fairly arises. Our statute declares that in the argument to the jury, "the party having the burden of the issue shall have the opening and closing" (§ 3047), and Preston v. Walker. that a new trial shall be granted for irregularity in the proceedings of the court, or for any order, or abuse of discretion by which the party was prevented from having a fair trial. § 3112, cl. 1. But the question is, will this court undertake to reverse the action of the court below in this matter, and if so, what is the rule? It was held as recently as in June, 1867 (Fountain v. West, 23 Iowa, 14), that it would require a very clear case of prejudice, resulting from the action of the court in directing the argument, to justify reversing, for this reason, a judgment, after trial upon the merits. And this is fully sustained by Goodpastor v. Voris (8 Iowa, 335), where it is said that this is not a proper matter upon which to base an appeal, nor for the assignment of an error, going even further than the more recent case just cited. To the same effect will be found Smith et al. v. Cooper & Clarke (9 Iowa, 379), and Woodward v. Laverty (14 Iowa, 383). So that for this State the rule must be regarded as settled, that while the right to review such a question is not absolutely denied, yet there must be a clear case of prejudice in order to justify a reversal upon this ground. We are aware that in some of the States the point has been ruled otherwise. Others again are found in harmony with the rule recognized by us. In the conflict, we deem it safe to stand by what has been decided. The statute, we may observe, declares nothing more than what was the practice at common law, and it cannot be claimed, therefore, to introduce a new rule, nor to give the right more absolutely than if there was no such provision. In this case we see no such abuse of discretion, no such case of prejudice, as to justify interference. The testimony is not all before us. There is enough, however, to show that the prima facia case made by the introduction of the notes, had but little place in the trial of the |