Shipley v. Reasoner

80 Iowa 548 | Iowa | 1890

Given, J.

1. Appeal: question reviewed: foundation. — I. Appellee contends that, as no new trial was asked by appellant, the only inquiry is whether the defendant was entitled to a judgment on the special findings, by reason 0f their inconsistency with the general verdict. “The supreme court may review or reverse, on appeal, any judgment or order of the district court or circuit court, although no motion for a new trial was made in such court.” Code, sec. 3169. “A judgment or order shall not be reversed for an error which can be corrected on motion in an inferior court, until such motion has been made there, and overruled.” Code, sec. 3168. The purpose of a motion for a new trial is to bring to the attention of the trial court questions to which its attention would not otherwise be called. While this court will not consider errors that have not been called to the attention of the trial court, it will consider all questions presented to the lower court upon which there was a ruling and exceptions taken, when the ruling is assigned as error and presented in argument. Appellant excepted to the overruling of his motion to direct a verdict for the defendant, and his motion for judgment on the special findings, and hence the question involved in these motions, being specifically pointed out and assigned and argued as errors, are before us for consideration.

2. Promissory notes: recovery of: cancellation. II. The controlling question is whether the plaintiff was entitled to the immediate possession of the promissory notes in question at the commencement of this action. The. maker of a promissory note may maintain an action to-recover possession thereof when under the facts equity would decree its cancellaiion. Cancellation will bedecreéd when there has been a full payment; when the note is entirely void for want of consideration .or other cause ; when the consideration has totally failed; or when the maker, having the right to rescind the contract, does so, and returns, or offers to return; the consideration received, and the return of the note is-demanded and refused. In this connection, see Savery v. Hays, 20 Iowa, 26; Sigler v. Hidy, 56 Iowa, 504.

3. Contract: gambling: public policy in pari delicto III. Appellee contends that the contract between plaintiff and the seed company was a gambling contract,. and consequently void. This contract is identical with that in Hanks v. Brown, 79 Iowa, 590, so far as this question is concerned. In that case this court held that it was not a. gambling contract, within the meaning of our Code. We have reviewed the question in the light of the arguments and authorities cited on rehearing, and in this case, and in Merrill v. Packer, ante, p. 542, and are still satisfied with the conclusion announced. Appellee also contends-that this contract is contrary to public policy, and, therefore, void. It is identical with that in Merrill v. Packer, so far as the question of public policy is concerned. In that case we held the contract to. be void as against public policy, and we see no reason why the same ruling should not be applied to this. The contract is not based upon any actual values, but upon confessedly extravagant and unreal values. It is not an honest, good-faith transaction, but a cunningly devised scheme to cheat and defraud. It could not be carried out without in the end deceiving some persons into paying many times the value of the oats. Both parties to the contract were parties to this intent to defraud, and hence the law leaves them where it finds them, and will afford no relief to either upon such a transaction. Langan v. Sankey, 55 Iowa, 52 ; Steever v. Railway Co., 62 Iowa, 371. While the notes are void, except as to innocent purchasers for value before due, yet equity will not ■decree a cancellation at the suit of a party to the fraud. The defendant’s motion for a verdict in his favor should have been sustained.

IV. As the foregoing conclusion denies to the plaintiff the right to recover possession of the notes in ■controversy, it is unnecessary that we consider the other errors assigned and discussed, or that we determine •anything as to the rights of the parties in an action to recover on the notes. The judgment of the district court is Reversed.

REPORTS OF Cases in Law and Equity, DETERMINED IN THE PREM.E COURT OF THE STATE OF IOWA, AT DES MOINES, OCTOBER TERM, A, D, 1890, l IN THE FORTY-FOURTH YEAR OF THE STATE. PRESENT: Hon. JAMES H. ROTHROCK, Chief Justice. Hon. JOSEPH M. BECK, Hon. GIFFORD S. ROBINSON, Hon. CHARLES T. GRANGER, Hon. JOSIAH GIVEN, Justices.