delivered the opinion of the court.
This is a suit for specific performance of a contract to pay $10,000 in money and transfer 250 shares of stock in a corporation, The Plains Iron Works Company. The cause is before us for the second time. The opinion and decision upon the first review may be found in Plains Iron Works Co. v. Haggott,
The evidence is sufficient to sustain the сourt’s findings of fact, and for this reason it is not necessary to consider further such contentions as are based entirely on disputed facts. In this conneсtion, we observe that there is considerable discussion of the evidence tending to support the defense that plaintiff is not here with clean hаnds, but that issue was determined adversely to defendants as an issue of fact.
The defendants plead res judicata. The plea is based on the former opinion of this court as to the sufficiеncy of the evidence to support any judgment against the Iron Works Company. This court however did not direct or order the direction of any judgment in fаvor of the company, but the cause was remanded for new trial and plain
Error is assigned to the trial court’s refusal to grant defendants a trial by jury. In Neikirk v. Boulder Bank,
“Under our code, whether an issue of fact must be tried by a jury depends upon the character of the action in which the issue is jоined.”
We hold the instant case to be a suit for specific performance, not only because we have so indicated in the former opinion but also upon a consideration of the allegations of the amended complaint and the relief demanded. A suit for specific performance is an equitable action, and being such, it is triable to the court without a jury. Johnson v. National Bank,
The plaintiffs in error, however, further claim that the suit, in so far as the stоck is concerned, is an action for the recovery of specific personal property, and therefore must be tried by a jury under seсtion 190, Code of 1908, which requires such actions to be tried by a jury unless a j jury trial is waived. While the recovery of specific personal property mаy result from the successful prosecution of a suit for specific performance of a contract to transfer such personal property, the suit, nevertheless, is not one “for the recovery of specific personal property,” within the meaning of the code. In Hull v. Bell Bros.,
Error is assigned to the trial court’s overruling defendants’ objection to the admission in evidence of testimony given at the first trial by witnesses who were absent from the state at the time of the last trial, that is, at the time the former evidence was sought to be used. The objection was upon three, and only three, grounds, and these were: 1. An alleged lack оf diligence to procure the attendance of the absent witnesses. 2. That no effort was made to obtain their depositions. 3. That there was nоt an identity of issues at the two trials. There was no obj ection on the ground that there was not an identity of parties.
There was a sufficient showing to warrаnt the court in overruling the objection as to the first ground. As to the second ground: While some authorities require that an effort be made to secure the depositions of the absent witnesses (22 C. J. 432), others do not. (5 Enc. of Evidence, 906, 907.) In this state, former evidence may be used, without first showing an effort to take the dеpositions. Emerson v. Burnett,
The third ground of the objection is that the issues were not the same at the last trial as at the former trial. The issues were substantially the same, and that is sufficient to overrule the objection on that ground. 22 C. J. 430.' In 2 Wigmore on Evidence, section 1387, the author says:
“* * * It is sufficient if the issue was the same, or substantially so with reference to the likelihood of adequate cross examination, because the opponent has thus already had the full benefit оf the security intended by the law.”
The only difference which plaintiffs in error claim there is between the complaint at the first trial and the amended cоmplaint at the last trial is that under the allegations of
It is contended that the judgment against the defendant Asa Hubbell is erroneous, and that because the judgment is against him jointly with other defendants, the error in including him in the judgment “demands a reversal as to all of the defendants.”
The amended complaint alleges, and the trial court found, to the effect that defendant Asa Hubbell acquired his stock with full knowledge of the contract, which provided not only for the payment of the cash commission to plaintiff, but also for the delivery to plaintiff of shares of stock. Hubbell acquired stock which was impressed with a trust in favor of the plaintiff. There is no sufficient reason why the decree as to Asa Hubbell should be disturbed, in so far as it pertains to the delivery to plaintiff of the stock in the Iron Works Company.
There was nothing in thе pleadings or in the proof to warrant a judgment against Asa Hubbell for the $10,000 cash commission. This situation is not disputed. However, that does not, as plaintiffs in error claim, require a reversal as to all of the defendants. In 4 C. J.. 1155, it is said that “where the facts are such as to make it proper, an appellаte court will modify a judgment or decree * * * by striking therefrom the names of such parties as have been improperly included.” , We find nothing in our statutes or decisions to preclude the application of the principle involved in that rule and modifying the decree accordingly, in the instant case.
There is no error in the record, other than the one just
The costs will be taxed to plaintiffs in error.