72 Iowa 476 | Iowa | 1887
I. Appellant assigns as error tbe action of the circuit court in submitting tbe grounds upon which a new trial was demanded to the jury, and in taking their verdict upon those questions. It was held by this court in Carpenter v. Brown, 50 Iowa, 451, that in a proceeding of this character the parties were not entitled to a trial by jury, but that the questions of fact involved should be determined by the court. But in the present case it is shown by the record that defendant demanded a jury trial. Having by that demand led the trial court into the error of submitting the questions of fact to the jury, he ought not now to be permitted to take advantage of it. True, he asked the court, after the jury had found against him, to disregard the findings, and determine the questions from the evidence upon which they had been submitted to the jury. But, clearly, he was not entitled, at that stage of the case, to change his position. By his demand for a trial by jury, he elected to accept their findings rather than those of the court on the questions of fact involved, and he is bound by that election; and the court very properly refused to permit him to change his position on the question after a verdict had been found against him. It is proper to say, in this connection, that the ultimate question whether a new trial should be granted was not submitted to the jury, but they were required to find specially on certain questions of fact.
Plaintiff’s undertaking in the contract is in the following words: “ I hereby guaranty the performance of the within contract on the part of T. J. Warren and George W. Gunnison.” The contract was executed by Warren and Gunnison individually. As stated above, Warren made default, and there is no claim that he has any defense to the claim made by defendant. Appellant insists that the undertaking of Warren and Gunnison is several, and that plaintiff’s undertaking is a guaranty that each will perform the whole contract, and
While the facts established by the second finding. might entitle plaintiff to a modification of the judgment, or to a new trial as to the additional matters pleaded in the amended petition, they do not entitle him to a new trial as to the matters pleaded in the original petition. But we are of the opinion that the circuit court was warranted in awarding a new Rial by the third finding, and the fact that the agreement was communicated to plaintiff. ITe was relying on the attorney with whom the agreement was made to appear for him, and make his defense. Being informed that the agreement had been entered into between him and defendant’s
We think the order granting a new trial is right, and it will be AFFIRMED.'