Ludwig v. Blackshere

71 N.W. 356, 102 Iowa 366

• Court: Supreme Court of Iowa
• Decided: May 22, 1897
• Status: Published

Opinion

Kinne, C. J.

1 2 I. Adams owned four hundred and forty acres of land in Linn county, Iowa, upon which, in 1886, the defendant held mortgages in an amount exceeding ten thousand dollars. Adams admits he deeded this land to the defendant in satisfaction of these claims; and defendant claims that in consideration of his delivering up to Adams his notes, and satisfying the debt, Adams agreed to and did deed the land to the defendant, and also turned over to him, as a part of the consideration, the personal property now in controversy. The only point of contention is as to whether the said personal property was turned over in part satisfaction of the mortgages, as is claimed by appellant, or whether it was so turned over to the defendant on his agreement to pay the reasonable value of it. On cross-examination the plaintiff sought to-show by one Jordan, the agent of the defendant who had possession of this personal property, that when he turned it over to one Haines, who succeeded him as agent for the defendant, Adams made no objection to such transfer. Similar evidence was sought to be elicited from Haines. All of this evidence was excluded, and error is predicated upon the rulings with reference thereto. We think this evidence was properly excluded. On every theory of the case, the property had been sold and transferred by Adams to the defendant. Because, as Adams • now claims, defendant had not yet paid him for the property, would be no reason for Adams to object to the placing of the same in the possession of another person as agent for the' defendant. It continued in defendant’s possession as before, and was just as available to Adams in satisfaction of his claim as if it had remained in the custody of Jordan. There was no reason, then, for Adams to say anything touching the matter of the change of custody from Jordan to Haines. Furthermore, the evidence of Jordan was properly ruled out as not proper cross-examination.

II. Complaint is made of certain rulings of the court upon the examination of Judge Thompson. While it would not have been improper to have permitted the judge to answer the questions objected to, still there was no abuse of the discretion vested in the court, because it appears that he had already, in substance, answered the same questions.

3 III. The court permitted the plaintiff to show the value of the land at the time the conveyance was made by Adams to the defendant, and these rulings are claimed to have been erroneous. While evidence of the value of the land was not of controlling importance, it was proper to go to the jury upon the question of the probability of the personal property having formed a part ■ of the consideration of the payment of the mortgage debt, inasmuch as the direct evidence touching that matter was conflicting. Johnson v. Harder, 45 Iowa, 679; Paddleford v. Cook, 74 Iowa, 434 (38 N. W. Rep. 137); Lumber Co. v. Smith, 71 Wis. 304 (37 N. W. Rep. 412), and cases cited.

4 IY. The original answer of the defendant was •'.ntroduced in evidence over his objection. This answer pleaded a payment for the personal property long after its purchase. It may be that the allegations therein contained were not consistent with those made in subsequent amendments to the answer. If the original answer should be deemed to have been superseded by the amendments, still the original might be introduced in evidence; and, if the facts so pleaded had been mistakenly or inadvertently stated, the defendant had the right to explain the circumstances under which they were made. There was no error in the ruling. Shipley v. Reasoner, 87 Iowa, 556 (54 N. W. Rep. 470).

5 Y.' It is said that the court erred in refusing to permit the defendant to show that the land was on the market from the time he got it until he sold it, in 1894, and how long he kept it before he found a purchaser, and that twenty-seven dollars per acre was the highest price he could get for it. Whether or not the facts that defendant kept the land on the market, and found no purchaser, until 1894, and then sold it for much less per acre than the evidence of plaintiff’s witnesses shows it was worth in 1886,.are material, as tending to show the value of the land in 1886, would depend upon facts not sought to be put in evidence. Defendant did not offer to show what, if any, effort he had made to sell the land or to find a purchaser. While, under a proper showing, the offered evidence might have been material, and should, have been admitted, yet, in view of the circumstances under which it was offered, we think it was properly excluded.

6 7 YI. Appellant says the court erred in giving certain instructions to the jury. Appellee insists that we cannot consider the question sought to be raised, as the record fails to show any proper exceptions to the giving of the instructions now complained of. The abstract of appellant shows that the defendant excepted to the giving of every one of the instructions in the charge of the court, at the time they were given. Appellee, in an amended abstract, says the only exceptions to instructions are found in the bill of exceptions, in the following language: “The court then, on its own motion, read and gave to the jury the following instructions, which were duly excepted to at the time by the defendant. No exceptions to any of the said instructions are noted on the margin thereof.” Appellant, in a reply abstract, avers that the original abstract and appellee’s amendment thereto constitute a full and complete abstract of the record. It then appears that the exceptions, as shown by the bill of exceptions, go to the charge of the court as a whole; and as it is not claimed that the entire charge is erroneous, and no particular instruction is excepted to, it is clear such an exception is insufficient to raise any question for our-consideration. McCaleb v. Smith, 24 Iowa, 591; Mershon v. Insurance Co., 34 Iowa, 88; Cook v. Railroad Co., 37 Iowa, 426; Bartle v. City of Des Moines, 38 Iowa, 416; Moore v. Gilbert, 46 Iowa, 509; Pitman v. Molsberry, 49 Iowa, 339. Appellant contends, however, that within three days after the return of the verdict he filed his motion for a new trial, in which he pointed out specifically his objections to the instructions. Section 2789 of the Code, provides: “Either party may take and file exceptions to the charge or instruction given, or to the refusal to give any instructions. offered, within three days after the verdict, and may include the same in a motion for a new trial, but in either case the exceptions shall specify the part of the charge or instructions objected to and the ground of the objection.” The statute, it will be seen, provides that when exceptions are taken to instructions after the verdict, and in a motion for a new trial, such exceptions must specify the part of the charge objected to, and must state the ground of the objection. If it be conceded that the exceptions in the motion for a new trial sufficiently specify the portion of the charge objected to, there can be no claim that the grounds of the objections are stated. We have read with care the motion for a new trial, and it nowhere states any ground of objection to a single instruction given. Such an exception is not in compliance with the statute, and we cannot consider the questions presented which are based thereon. That exceptions to instructions not taken when they are given must specify the ground of objection, is not only the requirement of the statute, but has been held to be the law in many decisions of this court. Parsons v. Parsons, 66 Iowa, 754 (21 N. W. Rep. 570, and 24 N. W. Rep. 564); Hale v. Gibbs, 43 Iowa, 380; Stevens v. Taylor, 58 Iowa, 664 (12 N. W. Rep. 625); Stanhope v. Swafford, 80 Iowa, 48 (45 N. W. Rep. 403).

8 9 10 VII. Error is assigned as follows: “The court erred in refusing to give and read to the jury instructions 1, 2, 3, 4, 5, and 6, asked by the defendant, and every one of them.” Exceptions were taken to the refusal to give these instructions when they were asked and refused, and assignments like that above set out have often been held sufficient as to instructions asked and refused. Sherwood v. Snow, 46 Iowa, 481; Hammer v. Railroad, Co., 70 Iowa, 624 (25 N. W. Rep. 246); Koenigs v. Railroad Co., 98 Iowa, 569 (65 N. W. Rep. 314), and cases cited. The defendant asked six instructions which were refused. There was no error in refusing them. The first instruction was based upon the theory that the bill of sale raised a presumption that the personal property sued for in this action was settled for at the time, and that the consideration named in the bill of sale is presumptive evidence of the amount of the price agreed upon. Without expressing an opinion as to whether the instruction states the abstract proposition of law correctly, it would have been error, in any event, to have given it as worded, because it is not claimed that all of the personal property sued for in this action was embraced in said bill of sale. It was therefore misleading, and improperly assumed facts contrary to all of the evidence. The second and third instructions were properly refused. We think, under the holding in Manning v. Meredith, 69 Iowa, 430 (29 N. W. Rep. 336), that, had the second instruction omitted the reference to the defendant’s ownership of the land, it might properly have been given. The third instruction was faulty, in that it said that the court had jurisdiction over the defendant’s property in Linn county for the purpose of subjecting it to the payment of plaintiff’s claim, notwithstanding defendant was a non-resident. Under this feature of these instructions, if given, the jury might well have concluded that if the defendant was indebted to Adams, as the latter claimed, he (Adams) might at any time, by an ordinary suit have enforced his claim against the defendant’s property in Linn county, and hence the fact that he did not do so would be presumptive evidence that his claim had been paid. The fact that the property of the defendant (he being a non-resident) could only be reached and subjected to Adams’ claim by process of attachment, would go far, we think, to negative any presumption as to the payment of the claim which might otherwise arise from the lapse of time, coupled with the ownership of the property, which might, as in case of a resident, be taken for the payment of the debt without resorting to the extraordinary process of attachment. Because one who has a just claim against a non-resident who owns property in the county of the claimant’s residence does not resort to a suit by attachment to secure it, is no reason for holding that a presumption arises that his claim has been paid or satisfied. To sue out an attachment, one must furnish a bond, and the uncertainties of the litigation which might follow such action are such that a failure to so act should not be held to raise any presumption against the holder of the claim against such non-resident. The circumstances of Adams may have been such that he could not give an attachment bond, and, if so, and the instructions had been given, his poverty would have been the means, — indirectly, it may be, — of raising a presumption that his claim had been paid. The fourth instruction asked, in so far as it was correct, was covered by the charge of the court. The fifth instruction asked states that there was no evidence that the .claim had been assigned by Adams to the plaintiff, and therefore the jury must find for the defendant. It was wholly immaterial whether or not the pleadings admitted the assignment of the claim, as the defendant proved said assignment by Adams himself. The instruction was therefore properly refused.

11 VIII. Finally it is insisted that the evidence does not support the verdict. Sitting as jurors, it is likely we should have reached a different result; but there was a plain conflict in the evidence, and it was for the jury to say who they believed had stated the facts correctly. There was sufficient evidence to sustain the verdict, and we cannot interfere. — Affirmed.