Anthony v. O'Brien

• Decision Date: 20 January 1920
• Docket Number: 32795
• Citation: 175 N.W. 750,188 Iowa 802
• Parties: LOUIS ANTHONY, Appellee, v. MATT O'BRIEN, Appellant
• Court: Iowa Supreme Court

175 N.W. 750

188 Iowa 802

LOUIS ANTHONY, Appellee, v. MATT O'BRIEN, Appellant

No. 32795

Supreme Court of Iowa, Des Moines

January 20, 1920

REHEARING DENIED MARCH 17, 1920.

Appeal from Fremont District Court.--J. B. ROCKAFELLOW, Judge.

ACTION on an alleged breach of contract in the sale of corn resulted in a verdict for plaintiff and judgment thereon. The defendant appeals.

Affirmed.

Tinley Mitchell, Pryor & Ross, for appellant.

Ferguson Barnes & Ferguson, for appellee.

LADD, J. WEAVER, C. J., GAYNOR and STEVENS, JJ., concur.

OPINION

LADD, J.

I.

Plaintiff and defendant entered into an agreement, December 29, 1916, in words following:

"I have this day sold to Lewis Anthony 8,000 to 10,000 bushels of good sound dry, No. 4 or better corn, white, at the price of 83c per bushel, f. o. b. Payne Jct., to be delivered at elevator at Payne Jct., as soon as cars are furnished.

"(Grain that is not up to the grade purchased, to be accepted at market difference).

"I hereby acknowledge receipt of $ to apply in payment of above contract, and certify that the grain thus sold is now in my possession and is free and clear of all incumbrances and liens.

"[Signed] Matt O'Brien, Seller.

"Lewis Anthony, Buyer."

Plaintiff alleged that cars were furnished at Payne Junction for the receipt of said grain at several times, and that defendant was notified thereof, but at all times refused to deliver the corn, and has, in every respect, breached the contract; and prayed for damages in the difference between the contract price and the market price at the time of such refusal. The defendant interposed a general denial. At the close of the evidence, the defendant moved that a verdict be directed for the defendant. This motion was overruled, and the defendant proceeded to introduce evidence in his own behalf, and thereafter, witnesses were called in rebuttal by plaintiff. The error first assigned is that "the court erred in not sustaining the defendant's motion for a directed verdict in his behalf at the close of the plaintiff's evidence," citing the page and line where it might be found. This was repeated at the beginning of the argument, and, though not mentioned, the brief point was broad enough to include the same. It will be noted that the sufficiency of the evidence in its entirety later was not challenged in this motion; nor is any error in ruling thereon assigned. It is well established in this state that a defendant, by introducing evidence after such a ruling, waives the error, if any, in denying the motion. Stoner-McCray System v. Manhattan Oil Co., 176 Iowa 630, 156 N.W. 683. The error, if any, having been waived, may not be reviewed.

II. The fourth error assigned is to the giving of Instruction No. 7, and the fifth, "in submitting to the jury matters about which there was no dispute." The written objections to the instructions were general, and did not refer specifically to any particular instruction or portion thereof. The motion for new trial was equally general; neither the motion nor the exceptions complied with the requirements of Section 1 of Chapter 24, Acts of the Thirty-seventh General Assembly, providing that:

"Either party may take and file exceptions to the instructions of the court or any part of the instructions given or to the refusal to give any instruction as requested within five days after the verdict in the cause is filed or within such further time as the court may allow and may include the same or any part thereof in a motion for a new trial, but all such exceptions shall specify...