Wood v. Whitton

Jun 4, 1885

Reporters:
Before:: Beck

Lead Opinion

Beck, J.

i. practice courtferrors notcon-sned I. The first four points discussed in the argument of defendant’s counsel are based upon the ground that vei’dict ought to have been set aside by the court below for the reason that it is in conflict with the evidence. But the decision of the circuit court overruling a motion for a new trial based upon the ground, among others, that the verdict is contrary to the evidence, is not assigned as error, nor, indeed, is the objection made in any other manner in the assignments of error. It is a familiar rule prevailing here that we will not consider objections which are not made in the assignments of error. We cannot, therefore, inquire whether the verdict is sufficiently supported by the evidence.

*297II. The defendant’s assignment of error is in the following language:

“ And the appellant herein says there is manifest error on the face of the record in this:

“ 1. The court erred in overruling defendant’s motion to strike amended reply.

“ 2. The court erred in overruling defendant’s motion to strike supplemental petition.

“ 3. The court erred in overruling defendant’s objections to evidence, as shown by the bill of exceptions.

“é. The court erred in sustaining plaintiff’s objections to testimony, as shown by bill of exceptions.

“ 5. The court erred in overruling defendant’s motion to strike out parts of the testimony of plaintiff, as shown by the bill ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of exceptions.

“ 6. The court erred in allowing plaintiff to state conversations with Scott and Johnson, or either of them, as to the title to land and possession of land.

“7. The court erred in overruling defendant’s objection to introduction of letter exhibit CL.’

“ 8. The court erred in overruling defendant’s motion to strike out plaintiff’s evidence as to incumbrances on said real estate.

“ 9. The coiirt erred in overruling defendant’s objections to introduction of communications and letters between defendant and D. A. Scott and each of same.

“10. The court erred in admitting in evidence over defendants objection exhibit ‘“Wl’

“ 11. The court erred in giving his charge to the jury, and in giving each division thereof.

“ 12. The court erred in giving the tenth, eleventh and twelfth divisions of charge and each one thereof.

“ 13. The court erred in not fully instructing the jury as shown in motion for new trial.”

*298cusspinoV115’ considered. *297III. The objections made in the first, second, fifth, eighth, *298and tenth assignments of error are not discussed by counsel; we cannot, therefore, under the ru}eg 0f ported decisions of this court, consider them.

3. ——: ‘errors: specifKiness required. IV. “ An assignment of error * * * must, in a way as specific as the case will allow, point out the very error objected to.” Code, § 3207. Each of the other assignments after the first and second, and ° s } excepting the twelfth, violates this statute. It cannot be said of one of them that it plainly and specifically points out an error. The third, fourth, fifth, eleventh and thirteenth, either directly refer to the contents of the record for direction and information as to what matters are complained of, or these matters cannot be understood without such reference. An assignment should plainly state the error complained of and not refer the opposite counsel and the court to parts of, the record wherein the objection complained of is said to appear. The assignments just mentioned fail to point out the errors therein complained of, and cannot, therefore, be considered by us. Our conclusion is supported by decisions found in almost every volume of our reports. Among them are the following: Wilson v. Klokenteger et al., 56 Iowa, 764; Low et al. v. Fox, Id., 221; Hoefer v. City of Burlington, 59 Id., 281; McCormick v. Chicago, R. I. & P. R’y Co., 47 Id., 345; Morris v. Chicago, B. & Q. R‘y Co., 45 Id., 29; Stevens v. Brown, 60 Id., 403; Marsel v. Bowman, 62 Id., 57; Garrett v. Wells, 63 Id., 256.

SAME AS WO. 1. V. Defendant complains, in his argument, of the refusal of the court to give certain instructions asked by him, and the modification of one given at his request. Rut ,, . , ,. , , , ,, the assignment oí errors does not present these objections. We can consider no question not raised by the assignment of error.

*299i practice-evidenced» oiüylfartiaiiy laid’ *298VI. The plaintiff claimed, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍in this action, that the title of the land which he had contracted to purchase of defendant was *299defective, or that there were incumbrances upon E* lie was permitted to testify, against defendant’s objection, that be had informed Scott and Johnson that there was a cloud upon defendant’s title. The ground of defendant’s objection was that it did not appear that these parties were agents of defendant at the time as to matters pertaining to the transaction. The objection is renewed in the sixth assignment of error. But there was evidence tending to prove their, agency. The evidence could not have been properly rejected by the court at the time the objection was made, on the ground that their agency was not fully established.

6. EVIDENCE iendant to6’ third person, VII. The letter referred to in the seventh assignment of error was addressed by defendant to Johnson, and was objected to on the ground that it was “incomJ ° petent, immaterial, and a communication from defendant to a third party.” We think it was properly admitted, as it tended to show that Johnson, one of the persons referred to in the preceding point, was agent of defendant.

same as no. i. As we understand the abstract and‘argument of defendants, other rulings upon the admission of evidence, complained of by counsel in the argument are not referred to .q ^ assignTIients of error. They Cannot, therefore, be now considered.

same as no. . VIII. The twelfth assignment of error assails the tenth, eleventh and twelfth instructions. The twelfth is considered in the argument of defendant in connection with thirteenth, fourteenth and fifteenth, upon which error is not assigned. These we cannot consider, and must confine our attention to the instructions specified in the assignments of error. We do not understand that defendant objects in his argument to the tenth and eleventh instructions.

The twelfth instruction, we think, correctly states that certain letters passing between the parties were a proposition *300and acceptance constituting the contract upon which plaintiff recovers in this case. The instruction, in our opinion, correctly states the terms of the contract.

We have piassed upon and considered all the alleged errors assigned by defendant. We discover no ground for disturbing the judgment of the circuit court.

Affirmed.

Rehearing

ON REHEARING.

Beck, Ch. J.

e assignrors^speciflcuess required. I. A rehearing was allowed in this case upon petition of defendant, and the cause, after another argument, has been again- submitted. In the former opinion, through mistake, the last three assignments of error were not set out. Because of this mistake the rehearing was granted. These assignments of error are as follows: “ (14) The court erred in overruling defendant’s motion for a new trial. (15) The court erred in refusing to give to the jury the first, second, third one-half, fourth, fifth, sixth, ninth, eleventh, thirteenth, fourteenth, fifteenth, sixteenth and seventeenth instruc-’ tions asked ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍hy defendant, and each one thereof. (16) The court erred in modifying the third instruction asked hy defendant and in giving same. ” The fourteenth is not sufficiently specific to comply with Code, § 8207, cited in the origBial option, which, in addition to the language ^ere quoted, declares, touching an assignment of errorj that, “ among several points in a demurrer, or in a motion, or instruction, or rulings in an exception, it must designate which is relied upon as error, and the court will only regard errors which are assigned with the required exactness. ”

There were eighteen special grounds assigned by the motion for a new trial, each presenting different questions of law. The fourteenth assignment assails all these grounds, without specifying any particular error. This manner of assigning errors is forbidden by the section of the Code above cited. In addition to the cases above cited, see Oschner v. Schunk, 46 Iowa, *301293; Hawes v. Twogood, 12 Id., 582; Todd v. Branner, 30 Id., 439.

7.—: instructions refused: all referred to in one.assiguraent. II. The fifth point of the foregoing opinion is incorrect in stating that there were no assignments of error assailing the rulings of the court in refusing the instructions asked by defendant and in modifying the third instruction asked by defendants, and in refusing the others. This conclusion resulted from the mistake above stated in overlooking the fifteenth and sixteenth assignments of error. The fifteenth assignment of errors, under Sherwood v. Snow, 46 Iowa, 481, is sufficient to require the consideration of all the instructions refused, which are discussed by counsel in their original argument, to which we will now proceed.

8. contract: rSSnd^coiisideration. III. The third instruction referred to in the sixteenth assignment of errors was to the effect that the agreement involved in the action must be found to be sup- ... L Porte(^by a sufficient consideration. . The modifixation complained of is to the effect that the surrender of a certain contract, and the possession of certain lands which were covered thereby, would constitute a sufficient consideration. The modification, we think, is correct. Surely it announces a correct rule of law.

a. instruceíufoim toSt endence?dn IY. It is insisted- that the twelfth instruction, noticed in the eighth point of the foregoing opinion, is erroneous, for the reason that there is no issue in the case to which it is applicable. The ground of this objection seems to be that the petition declares on a contract arising upon the acceptance, on the fifteenth of February, of a proposition made by letter of defendant on the tenth of the same month, while the instruction under consideration holds that the letter of plaintiff, dated March 15th, constitutes an acceptance. But the position of defendant’s counsel does not accord with the facts as exhibited by the record. The petition does not allege that the acceptance of the proposition ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍was by letter, but simply that, upon the receipt of the *302letter of defendant, he was notified of plaintiff’s acceptance of the pi’oposition.

THE SAME. Y. The first instruction asked by defendant was rightly refused. It is based upon the thought that the jury should only look to the letter of defendant of February 10th, and defendant’s letter of the fifteenth of the same month, in order to determine whether there was a contract, and its terms. In support of this instruction counsel insist that the petition declares upon a contract made by these two letters. We have above pointed out that this is a mistake. The court was therefore right in refusing the instruction.

10. contract: whenno1 ground forreYI. The second instruction- refused is to the effect that, if plaintiff’s proposition had been made under a misapprehension of facts as to the condition of the land, defendant was justified in refusing to perform the con¡rac¡_ The instruction was correctly refused on the ground; if no other exists, that there is no evidence tending to show that defendant was induced by his mistaken belief as to the condition of the land to make the offer which plaintiff accepted, or that plaintiff had directly or indirectly caused this mistake. Defendant does not claim in his own evidence that if he had known the true condition of the land he would not have written the letter making the proposition, lie complains that he was misinformed of the condition of the land, of the fact that a house had been removed from it, but does not say that the proposition was made because he believed the land was in a different condition and that the house was upon it. He does not claim that plaintiff caused the mistake, but that he did not give information as to the condition of the land.

sameasno.9. YII. The contract of the purchase of the land, whereon payments were made, which were to be repaid by defendant under the contract in suit, was assigned to plaint- ^ The fourth instruction refused holds, in effect, that, to entitle plaintiff to recover, he must show *303a tender or an offer to execute to defendant a written instrument transferring the interest of plaintiff in the land. The instruction was properly refused for the reason, among others, that no such claim was made in the pleadings or upon the trial. The answer alleges that plaintiff has never tendered the contract itself to defendant, but there is no complaint that he has never tendered any other instrument.

THE SAME. Till. The fifth instruction, in effect, holds that the contract is to be found in a letter written to plaintiff by defendant, and defendant’s “reply” thereto, which is understood to mean the first letter written to defendant after plaintiff received his letter. There was more than ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍one letter written by plaintiff before he finally accepted the proposition by letter dated March 15th. It is plain that plaintiff’s acceptance of the proposition by letter, subsequent to the first letter in response thereto, would bind defendant, if he had not in the mean time withdrawn the proposition. The fifth instruction was rightly refused.

the same. IX: The sixth instruction is to the effect that plaintiff cannot recover unless he shows tender of a conveyance of his interest in the land to defendant. The instructi011 was rightly refused, for the reason stated in the seventh division of this opinion.

THE SAME X. The eleventh instruction asked repeats the error of the first and fifth, in holding that the contract is to be found in defendant’s letter of the tenth of February, and ** ’ defendant’s reply thereto of February 15th. It was rightly refused, upon the ground disclosed in the fourth, fifth and eighth points. Other instructions refused are not made the subject for discussion by defendant’s counsel. We cannot therefore consider them.

same ash-0.1. XI. The court upon its own motion required the jury to find specially upon certain questions propounded to them. This action is made the ground of complaint in ai.gUmerLt 0f counsel for defendant. But nc error is assigned thereon, and we cannot therefore consider it.

*304The foregoing discussion, in connection with the original opinion, disposes of all questions in the case. The judgment of the circuit court is

Affirmed.