Leekins v. Nordyke & Marmon Co.

• Citation: 24 N.W. 1,66 Iowa 471
• Parties: LEEKINS v. NORDYKE & MARMON CO.
• Decision Date: 09 June 1885
• Court: United States State Supreme Court of Iowa

66 Iowa 471

24 N.W. 1

LEEKINS

v.NORDYKE & MARMON CO.

Supreme Court of Iowa.

Filed June 9, 1885.

Appeal from Grundy circuit court.

Defendant is a manufacturer of mill-machinery, and it sold to the Grundy County Mill Company the machinery for a mill. Plaintiff acted as the agent of the Grundy County Company in making the purchase, and he alleges that defendant agreed to pay him a commission of $271 on said purchase, and that it did pay him $75 of the amount, and he brought this action to recover the balance thereof. He also alleges that he entered into said contract with one Dwyer, an agent of defendant, and that defendant subsequently ratified the action of Dwyer in making it. Defendant's answer is a general denial. There was a verdict and judgment for plaintiff, and defendant appeals.Binford & Snelling, for appellant.

Day & Thompson, for appellee.

REED, J.

Defendant's principal place of business is at Indianapolis, in the state of Indiana, and the transaction out of which this cause arose was had at that place. Plaintiff visited Indianapolis for the purpose of purchasing the necessary machinery for a mill which the Grundy County Mill Company was building, and he entered into a negotiation with defendant, which resulted in the purchase of said machinery from it. Defendant is a corporation, and the negotiation was conducted on its part principally by one Dwyer, who was in its employ as draughtsman and superintendent of its shop. Plaintiff's claim is that Dwyer agreed that defendant would pay him a commission on the purchase in case it should be consummated. Also that defendant subsequently ratified this contract, and performed it in part by paying him a portion of said commission. It is urged by appellant's counsel in argument (1) that the evidence does not establish that Dwyer ever assumed to make the alleged contract; and (2) that it does not show a subsequent ratification of such contract by defendant. The question of the sufficiency of the evidence to sustain the verdict was raised in the circuit court by the motion for a new trial, but was not raised in any other manner. Appellant seeks to raise the question in this court by assigning as error the ruling on this motion. The assignment of error is in the following form: “The court erred in overruling the motion for a new trial.” The motion, however, alleged some eight other grounds on which a new trial was demanded, some of which have been urged in this court, while others were not referred to by counsel in argument. We cannot consider this assignment or determine any question which has been presented in argument under it, but which is not otherwise raised.

It is provided by section 3207 of the Code that “an assignment of error * * * must, in a way as specific as the case will allow, point out the very error objected to. Among several points in a demurrer or in a motion or instructions * * * it must designate which is relied on as an error, and the court will only regard errors which are assigned with the required exactness.” It is clear that this assignment does not comply with this requirement. If we could consider the question of the sufficiency of the evidence to sustain the verdict under it, we might also consider any one of the other questions raised by the motion for a new trial. But it does not specifically point out the ruling on any of these questions as erroneous. Our uniform holding heretofore has been that assignments of error in these forms should be disregarded. Bardwell v. Clare, 47 Iowa, 297;McCormick v. Railroad Co. Id. 346; Terry v. Taylor, 19 N. W. REP. 841.

2. Plaintiff was examined as a witness in his own behalf, and testified that he knew the relation which Dwyer sustained to defendant, and that he was its general business manager. Defendant moved to exclude this evidence on the ground that, as it was a corporation, its record was the best evidence of who were its officers. This motion was overruled, and defendant assigns this ruling as error. If it had been claimed that Dwyer was an officer of the corporation, elected or appointed by the shareholders, the record of their action in electing him would have been the best evidence of his official character; but no such claim was made. Indeed, it was subsequently shown by Dwyer's own testimony that he was a mere employe of the corporation. The character of his employment and the nature of his duties might be shown, we think, by parol.

3. Plaintiff also testified that he made the contract, under which his right to the commission accrued, with Dwyer, and that defendant subsequently ratified the contract and paid him a portion of the commission. He also admitted that at the time he made the contract he was acting as agent for the Grundy County Company in making the purchase. After this admission was made, defendant moved the court to exclude the evidence with reference to the making of the contract and the payment of the money to plaintiff, on the ground that he could not, while acting as agent for the buyer, in the purchase of the property, make a valid contract with the seller for the payment by it of a consideration for his services in effecting the sale. It also asked the court to instruct the jury that a contract by it to pay plaintiff a commission for making the sale of...