100 P. 779 | Ariz. | 1909
Charlotte Pickthall, as administratrix of the estate of John Edward Francis, deceased, brought suit against Albert Steinfeld to recover the value of decedent’s interest in certain mining claims, conveyance of which is alleged to have been obtained by Steinfeld by a fraud perpetrated with the co-operation of decedent’s mother and another, upon decedent, who at the time of conveyance was a minor. Upon the conclusion of the tailing of testimony on behalf of the plaintiff the defendant, as well as the plaintiff, rested. The defendant then moved for an instruction to the jury that a verdict be returned for him. This motion was denied. The case was submitted to the jury under the instruction by the court that, should they find for the plaintiff, they should find nominal damages only. The verdict was returned for the plaintiff in the sum of one dollar. Both plaintiff and defendant have appealed.
The defendant Steinfeld as appellant assigns as errors that the court erred in overruling the demurrer interposed by the defendant to the complaint, and, further, that the court erred in denying the defendant’s motion for an instructed verdict. The first assignment of error is not urged in the brief, and does not appear to be well taken. The refusal of instructions is one of the grounds upon which, by our statutes, motions for new trial may be predicated. Such motion was not filed by the defendant. We have had frequent occasion to announce and apply the doctrine that the losing party must avail himself, in the trial court, of all opportunities provided by statute for the review there of its rulings, and that, where a motion for new trial was not made, we will not review the assignments of error which might have been presented by such motion. Copper Belle Min. Co. v. Costello, 11 Ariz. 334, 95 Pac. 94; Turner v. Franklin, 10 Ariz. 188, 85 Pac. 1070. We cannot with propriety consider this second assignment of error.
The plaintiff alleged in her complaint, not merely that Steinfeld procured a conveyance of 'the decedent’s interest, in fraud of decedent’s rights, for less than its value, but that Margaret Francis and Volkert were parties with Stein-feld in the conspiracy to defraud the minor Francis children, by procuring through the probate court a conveyance to Stein-feld of the interest of those minors for much less than it was
There is testimony by one witness placing a value upon the mining claims <in question, at the time of the purchase by Steinfeld, in the sum of $100,000. As far as that testimony tends to prove anything, it tends to prove that Steinfeld contracted to pay Margaret Francis and Volkert less than the claims were worth. If there rests in the difference between the value of the property and its purchase price any element of fraud, the fraud must have been perpetrated in equal proportion upon Margaret Francis and Volkert and the Francis children, proof of which would be variant from the allegations of the complaint. There is no evidence tending to indicate that either Margaret Francis or Volkert was deceived as to the value of the property, nor, in the light of all the facts as they existed at the time of the contract, that the consideration agreed upon was not, from the point of view of all the parties, a fair and adequate consideration.
A consideration of the propriety of the instruction that if the jury should find the fraud as pleaded, nominal damages alone should be returned, would require a treatment of matters that, in view of the conclusions just announced, are not material, and which would not add substantial merit to this opinion as a precedent. There being no evidence of consummated fraud, plaintiff should not have recovered even nominal damages. Therefore, if this instruction was erroneous, the error was without harm to her.
The assigned errors in the admission and rejection of evidence are upon matters which had no tendency to strengthen the proof of fraud, wherefore they need not be reviewed.
The judgment of the district court is affirmed.