232 N.W. 483 | Iowa | 1930
Plaintiff in his petition alleges, in substance, that the defendants, together with A.J. Horn, were, during the months of February, March, and April, 1927, directors of the First National Bank of Moulton; that the defendants, together *1197 with the said Horn, were the owners of a farm in Davis County, containing approximately 340 acres; that plaintiff was a new member of the board of directors of said bank; that it was represented by the defendants that said real estate was the property of the bank, and that, in order to protect said property for the benefit of the bank, it was necessary that certain indebtedness be paid; that the defendants, at the time of the making of said statements, knew them to be false, or should have known them to be false, and that the said statements were fraudulently made for the purpose of inducing the plaintiff to part with his money; that, relying upon said statements made to the plaintiff by the defendants, both at the meeting of the directors and privately, and believing them to be true, the plaintiff paid the sum of $1,727.90 on said indebtedness, represented by three checks, one dated February 10, 1927, for $218.82, payable to the Ottumwa National Bank; one dated March 25, 1927, for $338, payable to Lydia B. Blosser, and one dated April 27, 1927, for $1,171.08, payable to the Iowa National Bank.
"That the notes upon which the payments above set out were credited had not been signed by this plaintiff, and were not the obligation of this plaintiff; but plaintiff was led to believe that they were the obligation of the First National Bank of Moulton, when in truth and in fact they were the obligation of these defendants; and the defendants well knew that plaintiff was not liable upon said notes and that the bank was not liable on said notes, and fraudulently misrepresented to plaintiff the condition and facts; and plaintiff, relying upon said false statements fraudulently made by the defendants, was induced to make the payments above set out, and would not have made said payments, had he known the truth concerning the notes in question."
He asks judgment for the amount of said payments, with interest from the dates on which the payments were made. The defendants, in their answer, deny the averments of the petition, admitting that they, together with A.J. Horn and F.C. Moore, held the title to the Davis County farm, but alleging that they held the title to same solely and only as the trustees for the benefit of the First National Bank of Moulton.
Upon these issues, the case was tried to the court and a jury, *1198 and at the close of plaintiff's evidence, the court sustained a motion for a directed verdict for the defendants, and rendered judgment against the plaintiff for costs, from which judgment the plaintiff appeals.
At the outset of our examination, the question arises as to the sufficiency of "the errors relied upon for a reversal" to present anything for our determination. The case was tried on the aforesaid issues, and no rulings were made by 1. APPEAL AND the court which, in any event, could be the ERROR: subject of review, other than the rulings of the assignment court on the introduction of evidence and the of errors: action of the court in sustaining defendants' rule for motion for a directed verdict. Our Rule No. 30 preparation. specifies:
"The brief and argument of appellant shall contain a short and clear statement showing: * * * Fifth. The errors relied upon for a reversal."
We have repeatedly held that omnibus statements of error will not be considered, and that the statements of error must be specific, to present a question for review or decision in this court. Ryan Bros. v. Rate,
"In law actions, we sit as a court for the correction of errors at law, and the precise error of which complaint is made must be substantially pointed out by the appellant. Such is our rule, and such is our uniform holding."
What the rule contemplates is that the statement of error shall be complete in itself, and that each ruling by the court deemed by the appellant to be erroneous and reversible shall *1199
be set forth in clear, concise, and definite language, sufficiently full and specific, but without elaboration, to apprise the court of the ruling complained of and the particular, or particulars, in which, and for what reason, it is claimed to be erroneous. See Ryan Bros. v. Rate,
With the foregoing rule in mind, we now begin the consideration of the statements of error relied upon for a reversal. The appellant alleges, under the caption "Errors relied upon for a reversal:" "The court erred in holding that the action was based on fraud." This allegation is not specific, but a mere blanket or omnibus statement of error. In what ruling did the court so hold? The appellant has failed to state or specify. It is quite apparent that the aforesaid quoted statement of error does not comply with the rule, and we would be warranted in refusing to consider the same.
The appellant argues that his cause of action is for money had and received, or money paid under mistake of fact. An inspection of the averments of the petition clearly shows that his cause of action is based only on fraud. See Miller v.
2. PLEADING: Missouri Fire Brick Co.,
In Miller v. Missouri Fire Brick Co.,
"Had the defendant desired to rely upon the doctrine of mistake for a recovery on its counterclaim, it should have pleaded the matter, to say the least. Having relied exclusively upon the theory that plaintiff misrepresented the fact, and thereby fraudulently induced the defendant to overpay him, of course its right of recovery depended upon the fact of misrepresentation* * *."
The evidence in this case discloses that the plaintiff and defendants had executed notes to the Ottumwa National Bank, Lydia Blosser, and the Iowa National Bank, and that the amount which the plaintiff seeks to recover from the defendants is the amount paid by him to the respective payees of the notes. The amount paid by plaintiff upon said notes was his proportionate amount of the entire amount due thereon. It will be observed from the aforesaid quoted portion of the petition that the plaintiff avers "that the notes upon which the payments above set out were credited, had not been signed by this plaintiff, and were not the obligation of this plaintiff," etc. The evidence of plaintiff is that he signed the notes upon which the payments were made. It thus appears that there is a variance between the averments of the petition and the proof. The plaintiff's own evidence discloses that the payments made by him to the payees of the notes were not due to any mistake of fact, but that said payments were made because of his obligation as one of the makers. There could be no mistake on his part as to his obligation on the notes signed by him. It is quite obvious that, under the averments of the petition and the facts as shown by the record, the plaintiff cannot recover from the defendants under his claimed theory of a right of recovery for money paid by reason of a mistake of fact, or for moneys had and received by the defendants.
The appellant alleges as error the rulings of the court in *1201
sustaining objections to the proffered testimony of certain witnesses, referring only to the pages of the 3. APPEAL abstract. These statements of error are not in AND ERROR: accordance with the rule, and we would be assignment warranted in disregarding the same. Cary-Platt
of errors: v. Iowa Elec. Co.,
It is apparent from a reading of the pages of the abstract referred to by the appellant that the record fails to disclose, either by the form of the questions propounded or by offer of testimony or otherwise, what the answers would 4. APPEAL have been. It is the repeated pronouncement of AND ERROR: this court that in such situation no prejudicial review: error is shown. In re Estate of Johnson, 210 scope and Iowa 891; Reynolds Heitsman v. Henry, 193 Iowa extent: 164; Vorpahl v. Southern Sur. Co.,
The appellant complains that the court erred in stating to the jury that they should not consider certain testimony by the plaintiff as a witness. The complaint is not in conformity with the record. The remark of the court was qualified, and only to the effect that he would say to the jury that the testimony should not be considered by them unless the defendants were connected therewith. Moreover, under the issues as made by the pleadings, the testimony concerning which the remark of the court was made was clearly inadmissible.
The appellant complains of a striking of a small portion of the testimony of the plaintiff as a witness. It is 5. APPEAL dearly shown by the record that said testimony, AND ERROR: or the equivalent thereof, was afterwards review: introduced, and remains in the record. scope and Therefore, no prejudicial error is shown. See extent: Handlon v. Henshaw,
The appellant in his brief, under the heading "Errors Relied Upon For Reversal," state: "The court erred in sustaining defendants' motion for a directed verdict *1202
in favor of defendants." The motion for a 6. APPEAL AND directed verdict contains eight or more separate ERROR: and distinct grounds. It is apparent that the assignment appellant's allegation of error does not comply of errors: with the foregoing rule of this court, and is fatal not sufficient to present anything for our indefinite- consideration and determination. See State v.
ness. Briggs,
However, we have read the record with care, and it is apparent that the action of the court in sustaining defendants' motion for a directed verdict was clearly right.
There is no prejudicial error shown by the record, and the judgment of the trial court is hereby affirmed. — Affirmed.
MORLING, C.J., and STEVENS, De GRAFF, and ALBERT, JJ., concur.