189 Iowa 833 | Iowa | 1920
II. One claim by plaintiff was that the vice-president of the defendant had consented to a contract of sale made with one Kerr, although this contract involved some departure from the terms fixed by defendant in employing the plaintiff to sell or find a buyer for the land.
There was much controversy, and there were many objections to that part of an affidavit for continuance which recited wha.t an absent witness would testify to, if present. But we think that, in admitting what this witness would testify to, if present, counsel set forth what defendant considered to be the principal and substantial objections to the recitals in the affidavit. The recitals “particularly objected to” were the following:
a. “That all the plaintiff had done in securing Kerr’s signature to the contract,, and depositing by him of checks of $1,000 down payment, was done at the request of Riehle, as vice-president of the Skidmore Land Company.”
b. That this “contract had been secured by plaintiff from George W. Kerr at the request of defendant.”'
c.A recital that Riehle said “all the plaintiff bad done in securing Kerr’s signature to the contract and depositing by him of $1,000 down payment was done at the request of himself as vice-president of the defendant company.”
The objection to these recitals was, in substance, that each and all were conclusions, rather than statements of fact, and, at any rate, if any part was a statement of fact, and if it purported to give what was said by Riehle, rather than a deduction of the witness as to ivhat he said, such statements of fact were so mingled with conclusions as to make it impossible to distinguish what was conclusion and what was statement of fact.
But, by sustaining some of the objections made, the court eliminated so much of the recitals in the affidavit as stated that the contract had been secured by plaintiff from
“Nothing doing with me; I thought I had bought it; I thought I had bought the farm, but I didn’t get it.”
He was then asked whether Riehle made any objection to the contract with Kerr, or to any of the terms of the contract, except as to the price. At this point, defendant made objection that this was immaterial, incompetent, and irrelevant. The objection was overruled, under exception, and the witnéss answered that Riehle—
“Made no objection to nothing, only he wanted more money. I don’t believe — the way I remember — I don’t think we discussed this contract when he was in the office, — I don’t remember. About the only thing Mr. Riehle said to me about this farm was,, ‘If you buy this farm, you will have to pay more money,’ and he said he could get more money for the farm, — he had found that out; and if I got it, I would have to raise the bid. That is the amount of it.”
We hold that, in its general aspect, this testimony, or anything legitimately called for by the question, was neither
We hold likewise as to the following examination of Kerr, to which it was objected that the same was irrelevant and incompetent:
3- JuRg£lVncy ot objection. “Q. State -whether or not you had deposited in the First National Bank a sufficient sum of money to honor that check of $500 drawn on the First National Bank. Exhibit No. D-l, when that check should have been presented to that bank, properly indorsed. A. Yes, sir. Q. State whether or not you had a sufficient sum of money deposited in the Birmingham Savings Bank so that Exhibit D-2 would have been honored when presented to them, properly indorsed. A. Yes, sir.”
And so as to the following examination, to which the objection was that the same was immaterial and incompetent :
“Q. Mr. Kerr, say whether, at the time of the signing of the contract Exhibit P-7, and up until after you had this talk with Mr. Riehle, here in Fairfield, you were able and willing to get the money and make a deposit, if any objections were made to your checks. A. I had the money in the banks, not only to pay these checks, but to pay the full $5,000.”
But, in response to apt inquiry, this witness did testify that he had at all times relevant here been ready, able, and willing to buy this farm at $42,000 cash. It should be noted that, in course of the examination on this point, there were times when the witness gave no conclusion, but stated the fact that he had arranged his affairs so that he could pay the money required. But passing that, and with it the argument that,, if the inquiry was erroneous, answer made cured the error, we reach the question squarely whether it is either immaterial, irrelevant, or incompetent, in a case such as this, to receive such testimony, and whether such testimony, if a conclusion, is an objectionable conclusion. Clearly, in a suit for a commission instituted by a land broker, it is neither immaterial, irrelevant, or incompetent for the buyer to testify that he was ready, able, and willing to buy on the terms fixed by the seller. It is both material, relevant, and competent, because such' readiness,, ability, and willingness is a necessary
The second part charges that, while this is so, yet, if the jury found from the evidence that, when the seller finally acted, he declared that the buyer was acceptable, without reference to deposit made, and refused to go on purely because a greater price would not be acceded to by the buyer, then the -agent had found a satisfactory buyer,
One Avay that this question is raised, is by an allegation that “the court erred in overruling defendant’s motion for a new trial, as set forth on pages 90 to 94 of the abstract,” and that “the court erred in entering judgment on the verdict of the jury, as set forth on page 94 of the abstract.” Both complaints are clearly too broad, un
“One brief point is that the court erred in overruling appellant’s motion for new trial, because of the various assignments ‘heretofore made herein, which were urged as grounds for a new trial.’ The motion for new trial has 40 grounds. The assignment is too general for appellate review.”
Surely, this is as definite as the assignment at bar. And other complaints as definite have been held too indefinite to obtain appellate review'. Such were that the court erred in overruling motion for new trial, and that a new trial should have been granted,, “under the record in the evidence in this case.” State v. Strum, 184 Iowa 1165. Another was that it was error to overrule motion to direct, and a motion in arrest ■ of judgment, and to overrule the exceptions, for each and all of the reasons stated in such
VII. But the question remains whether the state of the evidence was not complained of in some manner that is sufficient to invoke appellate review. It will be remembered that the plaintiff made contract with the purchaser ' on terms that differed from the ones fixed by the seller. These terms demanded that the purchaser' should make a cash deposit of $5,000, and no deposit in that amount was made. There was testimony from which the jury might believe that, after the defendant knew there had been failure to make such deposit, it still expressed itself satisfied with the contract made. The court instructed, in the first part of Instruction 5, that, if it was found that no deposit had been made, in conformity with the authority given the agent, he could not claim anything on account of procuring a purchaser; and further charged, in the second paragraph, that, if the jury found that, when contract was tendered the defendant, it was satisfactory to it, though no cash deposit had been made, and that the refusal to enter into contract and to sell was due, not to a failure to make the deposit, but to the fact that a greater price than the one at which the agent was authorized to sell was being demanded by the buyer, then the jury was warranted in finding that the plaintiff had produced a purchaser ready, willing, and able to buy, on terms satisfactory to the defendant, and, therefore, that plaintiff was entitled to recover.
The sufficiency of the evidence to sustain the verdict is challenged by an exception to this instruction. The exception asserts that the instruction “authorized the jury to find a verdict in favor of the plaintiff,, on the theory that defendant might have waived the required deposit of
7-a
As to the complaint that there was no competent or sufficient evidence to authorize a finding by the jury that defendant was willing to accept only if a higher price were paid, we have to say that, in the absence of objection, there was an abundance of competent testimony upon which the jury could find that everything was satisfactory to the seller except a refusal to change the original price fixed.