182 Iowa 306 | Iowa | 1917
Defendant filed what it denominates a motion non obstante veredicto, but which is, in effect, a motion in arrest of judgment, and is based upon the failure to implead the Nebraska corporation. The very making of such a motion gave plaintiff the right to obviate the fault in pleading upon which the motion was based. Heald v. Western Union Tel. Co., 129 Iowa. 326, at 328; Decatur v. Simpson, 115 Iowa 348, at 351.
Perhaps one reason is that, since the motion'to direct verdict was made at the close of the testimony for plaintiff, and defendant thereafter introduced evidence, and did not renew the motion, he cannot prevail on the motion, under a half a dozen decisions to that effect made by this court within a year last past.
This situation, however, does not take away the right to urge, on motion for new trial, that the verdict is against the evidence. That claim, too, is made. But we think it is untenable, and that the verdict cannot be disturbed on that ground.
III. Since there must be a new trial, whether motion for new trial should have been sustained on the claim of newly discovered evidence is- a purely academic question.
So of the claim of misconduct by putting in false testimony. We think it is not well made. But if it were, it would but obtain the new trial which is got without'it; and the alleged misconduct might not be repeated on the new trial.
■ If the failure to subject plaintiff to artifice or deceit has any relevancy to whether he made timely rescission, and can place the other party in statu quo, it has already been said that whether such were practiced was a question for the jury. Since the jury found fraud and artifice were practiced, it is manifest that the failure to rescind Avithin a reasonable time, and inability to restore the status, cannot affect the right of the plaintiff to sue for his damages. This is so of the alleged demonstration that the vehicle had no defect, and of attempts by plaintiff to have same repaired. The rules on rescission do not seem to be involved at all. Plaintiff could maintain the suit he instituted, though he elected to affirm the contract after knoAvledge of the fraud. He could do this, and recover damages caused by the fraud. See Rice v. Friend Bros. Co., 179 Iowa 355. This, of course, carries with it the complaint that the instructions did not refer to AAdiat is a reasonable time wherein to rescind, and to what facts are necessary to maintain rescission.
We see no force in the related claim that, because plaintiff, in reliance on the guaranty received by him, continued to use the car after discovering defects therein, he waived the right to rescind, and failed to rescind within a reasonable time.
4-a.
Further complaint is made of refusal of an instruction, in effect, that a mere failure to perform an agreement never constitutes fraud. This is bottomed on the claim that plaintiff was suing for a breach of a written guaranty given him at the time that the alleged fraudulent representations were made. The answer is that the claim of plaintiff is not so bottomed. He is not suing for breach of warranty. While that may not be material, our understanding is that defendant introduced the warranty. It was not error to refuse this instruction.
VI. We do not agree with appellant that there was no jury question on whether the seller knew the representations made were false in fact; nor do we agree that the court enabled the jury to allow plaintiff a recovery although they found that the representations were not, in fact, false.
The writer has never been entirely satisfied with the interpretation given by Davis v. Central Land Co., 162 Iowa 269, to Boddy v. Henry, 113 Iowa 162. But there seems to be no necessity of going into that question here, because
In our opinion, the judgment below should be reversed because of said error in receiving testimony and the giving of said instruction. — Reversed, and remanded.