Johnson v. Bernstein

178 Iowa 1052 | Iowa | 1915

Ladd, J.

The plaintiff leased to Frank Anton a lunch room on the premises described as No. 536 West Broadway in Council Bluffs for one year, beginning January 15, 1912, at a rental of $60 per month. On the same day, the defendant, Bernstein, signed Anton’s bond, conditioned that:

‘' If the said Frank Anton, his heirs or assigns, shall well and truly pay to the said Sam Johnson the above stipulated rent promptly and punctually, as provided in the lease this day executed between the parties hereto, and shall well and truly comply with all of the requirements of said lease, then these presents to bo void. Otherwise to be and remain in full force and effect.”

1' stoet?^releas© lord and ienant: novation. I. The petition alleged that $150 of the stipulated rent remained unpaid. The answer was a general denial, and an averment that no lease was executed to Anton, but that the premises were let to a partnership composed of Pappas.and Anton. It is said that the court erred in not submitting this last issue to the jury. Though the evidence tended to show that a copartnership, composed of the lessee and Pappas, was engaged in business on the leased premises, this was not enough to warrant the inference that such parties or firm had been accepted instead of Anton, as lessee. The latter was not prohibited by the terms of the lease from subletting; and, if he did so, he would not be released from the obligation to pay rent, as stipulated. If there was a novation modifying the terms of the lease, plaintiff, in order to release the surety, must have assented thereto. The record contains no evidence of such an assent, nor that the obligation of Anton was changed in any wise. This being so, the court rightly declined to submit the issue to the jury.

2 triat • instrueand1exceptions:8 tíSÍs "specify-mg-objections. II. Some of the instructions are criticized. By agreement, they were oral; and, though they might not have been submitted to the attorneys before being given, this did llot rclieve appellant from pointing out “specifically the exact grounds” of objection thereto, in the motion for new trial. Section 2705-a, Code Supp., 1913. None other may be considered. State v. Nott, 168 Iowa 617.

It is needless to add that an assignment or brief point that there “was error in each and every instruction- given,” is entirely too general. For this reason, that criticism of instructions other than above will not be considered.

3' á^fwaiver of" error: motion for directed verdict before evidence closed. III. Again, appellant urges that a verdict for defendant should have been directed. The point was not saved in the trial court. At, tbe close of plaintiff’s evidence, a motion to direct a verdict for defendant was overruled. It was not renewed at the close of all the evidence, nor was the question raised in the motion for new trial. Indeed, the question of the sufficiency of the evidence was not raised in the trial court in any manner after all the evidence was before it. It cannot be raised in this court for the first time. "What we have said disposes of all the errors assigned and brief points stated. — Affirmed.

Deemer, Gaynor and Sauinger, JJ., concur.