Day, Cn. J.
i. practice • truusmisevdiscretíon^f — -I. The defendant insists that the court erred in refusing to order separate trials on each of the two C0Tmts i11 th-e plaintiff’s petition. The applicaUon for separate trials was based upon section 2746 of the Code, which is as follows: “The court may, in its discretion, allow separate trials between the plaintiff and any defendant, or of any cause of action united with others, or of any issue in an action; and such separate trials may be had at the same or different terms of the court, as circumstances may require.” The appellant concedes that under the provisions of this section it is discretionary with the court whether separate trials be granted or not, but insists that the discretion authorized is a legal discretion, and that it was greatly abused in this case. The plaintiff seeks the recovery of but one sum from the defendant, the $500 paid the defendant for his nursery. In the first count of the petition the plaintiff bases his right to recover upon the ground of his minority when the contract was made, and his subsequent disaffirm - anee of the contract. In the second count of his petition the plaintiff bases his right to recover- upon the ground of fraudulent representations of the defendant. The plaintiff had an undoubted right to rely upon either or both of these grounds. In our opinion, the court did not abuse its discretion in refusing to grant separate trials. Upon the contrary, if the matter is not wholly within the discretion of the court, we think it would have been an abuse of discretion to-have awarded separate trials of the two grounds alleged for the recovery of the same sum.
*1140 EV.IDEITCE. tractfparoi to prove fraud. II. The defendant objected to any evidence of representations made by him, at the time the contract was entered into, as to the character and quality of the trees, upon the ground that the contract was in writing, faC£ that the contract was in writing could not prevent the plaintiff from proving that it was procured by the fraudulent representations of the defendant.
3-__. ad_ íssuonSby answer. III. • The defendant complains of the action of the court in allowing the plaintiff to introduce evidence that the defendant had no lease of the premises on which the nursery stock stood. The defendant insists that if he did not have such leasehold it would only have been a breach of the written contract, and that the jietition does not claim that defendant made any representations with reference to such leasehold. The fact is that the written contract is entirely silent as to any interest in land. The defendant alleges in his answer that the contract embraced an interest in land, and that by mistake it was omitted from the written contract. The defendant testified that he had a lease to .the nursery, which passed to the defendant under the contract, and constituted a part of the consideration for the $500; and he insists that, as the defendant acquired thereby an interest in the land, he could not dis-affirm the contract during his minority. Surely it was competent for the plaintiff, in view of such evidence and claim, to prove that the defendant did not have such lease.
_ outasüfflcient for without" prejudice. IY. It is insisted that the court erred in sustaining the demurrer to the amendment of the answer setting up the agreement to ■ arbitrate. The grounds of the demurrer were, because the agreement was not acknowledged, and because no action had been takeil jjy the arbitrators. The appellant insists that, if the agreement did not constitute a statutory agreement to arbitrate, it at least was a common law agreement, ,and, as such, binding upon the parties. It may be that the grounds of the demurrer were not well taken. Still, we *115think that the sustaining of the demurrer, if error at all, was error without prejudice. The agreement contains a statement as follows: “I, B. P. Lewis, sign herewith in behalf- of LL A. Childs, and hereby guarantee -that said. Childs shall well and truly fulfill the above conditions on his part, and comply with the decision of said arbitrators.” This provision was doubtless inserted because of the claimed minority of H. A. Childs at the time. the agreement to arbitrate was made, which was but five days after the purchase of the nursery. The defendant certainly had a right to exact this guaranty that the plaintiff would observe the award, and, until Lewis signed the agreement as stipulated, it could not become binding upon the defendant. Now, the fact is, Lewis never signed the agreement, and as it .could not bind the plaintiff unless it also bound the defendent, it' follows that it never took effect as a binding contract between the parties. If, therefore, the grounds of the demurrer were not well taken, it follows that the defendant sustained no prejudice from the court’s ruling.
5. xnstbucsumptioa of iaot' V. The defendant asked the court to instruct the jury as follows: “The nursery stock in question, at the time it was growing in the ground, covered by a lease, was real estate, and a contract with reference thereto could not be rescinded by plaintiff during his minority. In this case it is not claimed that plaintiff rescinded his contract after he became of age, and having commenced this action during his minority, you will find-for the defendant on the first count.” The refusal of the court to give this instruction is assigned as error. The instruction was correctly refused, if for no other reason, because it assumes that the ground on which the stock was growing was covered by a lease, a point upon which there was a conflict of evidence. . . . . •
e. evidence: admissibility VI. Eespecting the tender to the defendant of the property received under the contract, the plaintiff testified as follows: “I went to Mr. Mayne’s office and found an(j j had come t0 tender him *116back his crop of trees and everything I got of him, and to demand my money. ' I told him the plate book and pruning knife were at the hardware store, and I would get them for him. Dobbins said he did not want them. He asked me on what grounds I demanded my money. I told him, on the grounds of misrepresentation and minority. Mayne was sitting there writing at the table. This was after the arbitration papers liad been prepared. I then went and had notice prepared and gave it to the sheriff. This was a little after dark.”
The defendent introduced Mr. Mayne as a witness, who testified as follows: “March 29, 1875, I prepared an article of arbitration between the jiarties to this»suit. Dobbins and Childs both signed it. It was prepared just before dinner; and it was prepared after the defendant brought the copy of the original notice in this case into our office, after the suit was begun. Childs was not there on any other occasion.”
, The witness was then asked the following question: “Now what do you know, if anything, about a tender, or an assumed tender, having been made by Childs there in your office, in your presence, that day?”
Plaintiff objects, because it is assuming a state of facts which they have no right to, and uj>on which to predicate the question. The objection was sustained, and the defendant excepted. This action the defendant assigns as error. In sustaining the objection the court erred. The plaintiff testified to the circumstances of the tender, and that it occurred in Mayne’s presence. It was surely competent for the defendant to prove by Mayne what he knew about the tender, and it was proper, in the interrogatory, to direct his attention to the subject respecting which he was interrogated. Eor the ruling of the court in excluding, testimony of Mayne respecting the tender of the property, the judgment is
Reversed.