104 F. 54 | 7th Cir. | 1900
after stating the case, delivered the opinion of the court.,
But few of the numerous specifications of error insisted upon present any question. The first, second, third, fifth, and seventh allege error in the admission or exclusion of evidence, but do not, as required by rule 11 (31 C. C. A. cxlvi., 90 Fed. cxlvi.), quote the substance of the evidence admitted or rejected. The iourth conforms to the rule in that respect, but the evidence referred to was of so little importance that a ruling one way or the other upon the motion to strike it out could not have been a material error. The tenth to eighteenth and twenty-ninth to thirty-fourth specifications each allege error of the court in holding or not holding as stated, but, if the court so held, it must have been in giving or refusing instructions, and it should have been so specified. Woodbury v. City of Shawneetown, 34 U. S. App. 655, 20 C. C. A. 400, 74 Fed. 205; Columbus Const. Co. v. Crane Co., 41 C. C. A. 189, 98 Fed. 946, 101 Fed. 55. The eighth, ninth, nineteenth, and twentieth specifications are to the effect that the court erred in not directing a verdict for the defendant; but the eighth the defendant waived by adducing further evidence after the ruling was made. The ninth specifies no particular in which there was supposed to be a lack of evidence; and while, in the nineteenth, the direction was asked “because of tender of all the rent sued for by Petterson to plaintiffs,” and in the twentieth “because no notice was given by the plaintiffs to defendant of nonpayment by Petterson of rent sued for,” it does not appear that either reason was suggested to the court at the time or before the motion for a peremptory instruction was denied. The bill of exceptions states simply that, all the evidence being in, “thereupon the defendant moved the court to hold the evidence insufficient to sustain the action, and to direct a verdict for the defendant”; but such a general motion, unaccompanied by a statement or suggestion of reasons for it, may properly be overruled. A practice is not to be approved which will permit of the presentation for review by this court of questions which are not shown to have been called 'to the attention of the trial court. Columbus Const. Co. v. Crane Co., supra; Stewart v. Morris, 37 C. C. A. 562,
What was the effect of the tenders made by Petterson to Shirk depended, perhaps, on other questions and propositions not embraced in the special instructions which were asked and refused. In no event could a tender made by Petterson be of effect unless Hliirk, as against Adams, was bound to accept it. If, after his assignment to Petterson, Adams was not responsible for the rent, the question was irrelevant and immaterial, and the refusal of the instruction of no consequence. It could be of importance only upon the theory that Adams remained liable for the rent, but by reason of the assignment, which to that extent Shirk was bound to recognize as valid, he had come into the position of surety for Petterson, and therefore was discharged by the refusal of Shirk to accept the proffered payment. If that relationship’ of the parties was a question of fact on the evidence, the special instruction asked should have been so framed as to submit the question to the jury. As drawn, the instruction assumes everything essential to' the proposition except the fact of tender. If that fact was a defense to the action against Adams, it is equally a bar to- the right of the lessors “to proceed against the improvements or against the original lessees.” We are of opinion that on the facts disclosed Shirk was justified in rejecting the tender. In the original lease it was stipulated that the lessees and their assigns should make no transfer of the [leasehold except by way of mortgage or trust deed except upon the [written consent of the lessor. Whether or not, without further stipulation, that restriction would have bound Adams, it is not neees-|sary to consider. A further stipulation was made. He accepted li u assignment by which, in express terms, “for himself * * ⅞ Imd assigns personally,” he assumed “all the terms, covenants, and Lgreements in said lease contained,” but with the modification expressed in the writing of the same date, signed by the Shirks, that, In case he should thereafter assign the lease “to some responsible lerson” who should be “satisfactory” to them, they would consent to ie substitution of the assignee, and release him and Ms estate from Birther liability. Assuming that the document signed by the Shirks as executed upon a sufficient consideration, and became binding, Bdains acquired thereby the right to transfer the term to a “re-Bonsible party” Who should also be satisfactory to the lessors. The of that provision, in our opinion, was that, when Adams pro
The twenty-eighth specification — the last to be considered — is that the court erred in overruling the motion in arrest of judgment. The grounds of the motion, as stated, are:
“(1) The declaration does not state a good cause of action. (2) There is a fatal variance between the allegations of tlie declaration and proof. (») There is no jurisdiction of the matter involved in this canso [except] on tlie chancery side of this court. (4) There is no jurisdiction of this cause in tlie United States court for want of proper citizenship of tlie parties.”
The second ground is irrelevant. A motion in arrest raises no objection to the evidence (2 Enc. Pl. & Prac. 813), but challenges the sufficiency of “the facts of record, apart from any showing by bill of exceptions,” to support the judgment (World’s Columbian Exposition Co. v. Republic of France, 33 C. C. A. 333, 91 Fed. 64). The first and fourth are unavailing, because of the sufficiency of the declaration and of the diverse citizenship of the parties there is no. ground for question. The objection that the suit should have been on the chancery side of the court would have been formidable if made in time. The bringing of the action at law is justified by the decision in Insurance Co. v. Hanford, 143 U. S. 187, 12 Sup. Ct. 437, 36 L. Ed. 118, but that decision, it is insisted, is a departure from the well-established rule declared in earlier and later cases, such as Fenn v. Holme, 21 How. 481, 16 L. Ed. 198; National Bank v. Grand Lodge, 98 U. S. 123, 25 L. Ed. 75; Furnace Co. v. Withrow, 149 U. S. 574, 13 Sup. Ct. 936, 37 L. Ed. 853; Lindsay v. Bank, 156 U. S. 485, 15 Sup. Ct. 472, 39 L. Ed. 505. It is enough here to observe the settled rule of practice that an objection of this kind must be made promptly, and, if delayed, as in this instance, to the end of the trial, will be overruled. In this case the objection was patent on the face of the declaration, but. so far as appears, it was first brought to the attention of the court: by the motion in arrest.
The judgment of the circuit court is affirmed.