Feister v. Kent

• Decision Date: 09 October 1894
• Citation: 60 N.W. 493,92 Iowa 1
• Parties: FEISTER v. KENT.
• Court: Iowa Supreme Court

92 Iowa 1

60 N.W. 493

FEISTER

v.KENT.

Supreme Court of Iowa.

Oct. 9, 1894.

Appeal from district court, Iowa county; S. H. Fairall, Judge.

Action for work, labor, and board. Judgment for plaintiff. Defendant appeals. Reversed.W. D. Evans and Baker & Ball, for appellant.

Hedges, Rumple & Lake, for appellee.

KINNE, J.

1. Plaintiff entered into defendant's employment as a clerk in his store on March 8, 1888, and so continued until September 6, 1889. Plaintiff claims that by a verbal agreement between him and defendant the latter was to compensate him for his services as follows: For the first month, his board, and after that time what his services were reasonably worth; that his services were reasonably worth $30 per month from April 8 to May 15, 1888; and that from the latter date until September 6, 1889, he had the care and management of defendant's store under the casual supervision of the defendant, and his services were reasonably worth $50 per month. He claims $823.66 for all his services as being due and unpaid. In a second count it is averred that plaintiff, at defendant's request, and for which he agreed to pay, furnished board to defendant's wife and employés, of the reasonable value of $170.14. Judgment is asked upon both counts for $993.80. Defendant admits the employment of plaintiff, but denies that he was to furnish him his board for the first month, and pay him the reasonable value of his services thereafter; denies that the services were worth the sum claimed, and denies that any sum is due plaintiff. He avers that plaintiff agreed to perform services for defendant in his store from March 8, 1888, to May 12, 1888, in consideration of defendant's paying his board, which he did; that plaintiff vebally agreed to remain for one year from May 14, 1888, for $15 per month and his board, which defendant was to pay, not exceeding $10 per month; that by verbal agreement between them, thereafter made, plaintiff continued in defendant's employ under the same arrangement as to compensation until discharged on September 6, 1889; that he has been fully paid. Defendant admits that plaintiff furnished board as alleged by him, but denies the value alleged, and denies that it is unpaid. He also claims that he had an agreement with plaintiff to furnish the board at not to exceed $10 per week for each person, and that all the board was furnished thereunder, and has been paid for, In a counterclaim defendant demands of plaintiff money for goods and merchandise and for house rent the sum of $1,000, and prays judgment against the plaintiff for $738. Plaintiff admits certain items of the counterclaim, and denies the balance. The cause was tried by a referee, who found conclusions of fact and law, and recommended a judgment against defendant for $410.46, with interest and costs. The defendant excepted to all of the findings and recommendations, and filed his motion in the district court to set aside the report and for a new trial, upon the following grounds: (1) Because the amount found due plaintiff was excessive, and allowed under the influence of passion or prejudice, as shown by an affidavit of defendant, attached; (2) because the finding as to the contract of hiring and price of board sued for is not supported by the evidence; (3) on account of newly-discovered evidence; (4) for alleged errors of law occurring at the trial. The affidavit above referred to stated that the referee, after the trial of this case, and pending his report, accepted employment in an action in which the affiant was plaintiff and one Rogers defendant, then pending in the district court of Iowa county, as counsel for said Rogers, whose interests were hostile to affiant; that in said action the referee assumed a bitterly hostile attitude to affiant, and caused witnesses to be subpoenaed on behalf of Rogers for the purpose of impeaching affiant's reputation for truth and veracity, and affiant believes that said referee's mind was poisoned against defendant. The showing made for a new trial on the ground of newly-discovered evidence consisted of the affidavit of one Asa L. Gallup, who swore to an acquaintance with the parties to this suit since 1887; that he resided in Grinnell; that he knew when defendant opened his store in Conroy, in Iowa county; knew that plaintiff was working in said store in May, 1888, and that at said time affiant was working in a store in Marengo; that he had a conversation with plaintiff, wherein he told affiant that he was to get $25 per month wages when Wilson left; that the reason he would then get that amount was that he would then have full charge of the store when Kent was absent, and would have more work to do, and greater responsibility; that affiant did not communicate said conversation to defendant, or to any one, until December 30, 1890, and does not know that Kent knew of said conversation prior to that time, or to affiant's having conversed with plaintiff concerning his business relations with defendant. Defendant also filed an affidavit in which he swears that at no time prior to December 30, 1890, had he any knowledge or information, or even intimation, that said Gallup knew the facts stated in his affidavit; that he did not know that Gallup had conversed with the plaintiff on the subject, nor had he any reason to believe that he had, or he would have made inquiry of him as to what, if anything, he knew of the facts stated. Other facts are sworn to, showing the materiality of the newly-discovered evidence. May 4, 1891, plaintiff filed a motion to strike from the files defendant's affidavit relating to the action of the referee, because it was irrelevant and immaterial, and not permissible. This motion was sustained, to which ruling defendant excepted. The court overruled the motion to set aside the report of the referee, approved the report, and entered judgment in accordance with the referee's recommendations, to all of which defendant excepted.

2. Several of the assignments of error are assailed as being insufficient to raise any question for our consideration. Of the original assignments, Nos. 1, 2, 4, 5 fail to point out or specify any errors, but require the court to make an examination of the record to ascertain what particular rulings are relied upon as error. The statute requiring an assignment of error to be made as specific as the case will allow, and to point out the very error objected to, is not obeyed by making an assignment which refers opposing counsel and the court to the contents of the record for direction or information as to what particular matters are complained of. These assignments cannot be considered. Code, § 3207; Wood v. Whitton, 66 Iowa, 298, 19 N. W. 907, and 23 N. W. 675. The tenth assignment is in these words: “Tenth. The court erred in overruling defendant's motion to set aside the report of the referee and grant a new trial.” The statute requires that when there are several points in a demurrer or motion the assignment must designate which one is relied upon as error. Code, § 3207. This motion contains four divisions, and the assignment goes to the motion generally. It is not good. Mara v. Bucknell (Iowa) 57 N. W. 876;Hamilton Buggy Co. v. Iowa Buggy Co. (Iowa) 55 N. W. 496; Shroeder v. Webster, Id. 569. The eleventh assignment reads: “The court erred in confirming the report of the referee, and rendering judgment thereon against the defendant.” We think this is insufficient. It is equivalent to saying that the court erred in rendering judgment against the defendant. It does not point out, or even suggest, what the error consisted of. If such an assignment is sufficient, it involves the examination of the entire record. Wood v. Whitton, 66 Iowa, 298, 19 N. W. 907, and 23 N. W. 675;Brigham v. Retelsdorf, 73 Iowa, 714, 36 N. W. 715;Vanderberg v. Camp, 68 Iowa, 212, 26 N. W. 80;Betts v. City of Glenwood, 52 Iowa, 126, 2 N. W. 1012;Tomblin v. Ball, 46 Iowa, 190;Hamilton Buggy Co. v. Iowa Buggy Co. (Iowa) 55 N. W. 496. The sixth assignment is upon the ground that the court erred in refusing to set aside the report of the referee and grant a new trial “on account of the excessive damages allowed, and the prejudice of the referee, as shown by the affidavit of James Kent.” Under another division of this opinion we hold that the affidavit as to prejudice was properly stricken from the files. If the assignment is intended to refer to anything else, it is not sufficiently specific. There were three several findings as to damages, and the assignment does not point out which one is claimed to have been excessive. The eighth assignment assigns error in the refusal of the court to set aside the report of the referee as to the price of board sued for, and because such findings are not sustained by sufficient evidence. Without entering into a discussion of the evidence, it may be said it was conflicting, but warranted the finding made, and there was no error in the court's action.

A very extended amended assignment of errors has been filed, some of which we proceed to notice. Errors 1, 9, 11, 13, 14, and 17 relate to the acts and findings of the referee, and to alleged errors therein. They do not refer in any...