Peterson v. McManus

• Decision Date: 15 May 1919
• Docket Number: No. 30041.,30041.
• Citation: 172 N.W. 460,187 Iowa 522
• Parties: PETERSON v. MCMANUS ET AL.
• Court: Iowa Supreme Court

187 Iowa 522

172 N.W. 460

PETERSON

v.MCMANUS ET AL.

No. 30041.

Supreme Court of Iowa.

May 15, 1919.

Appeal from District Court, Pottawattamie County; Thos. Arthur, Judge.

The plaintiff and his assignors were induced by appellant McManus to enter into contract to buy certain Canadian lands of the Grand Trunk Pacific Land Company. The purchasers made payments upon the contract. Originally this was a suit at law praying judgment against defendant for the sums so paid. As a result of motions filed by appellants the suit became, in effect, an attempt of plaintiff to rescind. The right to rescind was based upon assertion that fraudulent representations made by McManus had induced the purchasers to enter into the contract. Ultimately no damages for the alleged fraud were sought, and the claim to relief was limited to a restoration of what the purchasers had paid. The case was submitted to the jury on that theory. It found in favor of plaintiff and his assignors, except assignor Lowrey, and awarded to plaintiff and his other assignors the sums they had paid upon the contract. Plaintiff dismissed as to the claim assigned to him by Meyerring. It would seem that, though the land company is styled appellant, no action against it was had below. The judgment there went against McManus alone, and he alone appeals. Reversed and remanded.John J. Hess, H. L. Robertson, L. W. Schneider, and F. E. Northrop, all of Council Bluffs, for appellant.

Tinley, Mitchell & Pryor, of Council Bluffs, for appellee.

SALINGER, J.

I. The plaintiff has a cross-appeal because the jury found against the claim assigned by Lowrey. In effect, the contention on this cross-appeal is: (1) That this verdict is not supported by the evidence because fraudulent representations were made to Lowrey when the maker knew they were false; (2) that Lowrey relied upon these representations and was induced by them to act to his loss. This is included in the assignment that the court erred in overruling the motion of Lowrey for a new trial. We might dispose of it by pointing out that this motion contains many grounds, and that such an assignment is too general. But we have elected to pass upon that part of it which asserts that the verdict is contrary to the evidence. Our examination has satisfied us that we cannot interfere with the verdict on that ground.

There are also assignments on the taking of testimony, the giving and refusing of instructions, and misconduct of defendant's counsel. We find no prejudicial error in the taking of testimony, nor in instructing.

[1] It is asserted that counsel for defendant were guilty of misconduct in the trial, “especially in presentation to the jury in their referring to Lowrey as the moving force and principal actor in the case, and stating that Lowrey had induced the other assignors and plaintiff to repudiate their contracts and to institute this suit, said statements being wholly without foundation in the evidence and intended to prejudice the jury against Lowrey and against plaintiff as to the Lowrey claim,” and also “for other instances of this conduct on the part of counsel for defendant reference is hereby made to the exceptions made of record.” If it may be said this is a sufficient presentation, it fails to exhibit such misconduct as requires a reversal for refusal to grant a new trial therefor.

[2] II. We are of opinion that appellant is right in claiming that this is a suit to rescind, and none other. We reach this conclusion for the following reasons: Defendant moved to strike certain counts of the petition on the ground that the suit was one to rescind, and that these were inconsistent with a suit to rescind, and therefore immaterial and redundant, because they claim a measure of damages which rules only in actions for damages on account of fraud and deceit. This motion was sustained, and no exception was taken to the ruling. Later plaintiff dismissed these counts without prejudice, wherefore no appeal from this ruling could be taken by plaintiff, and none was attempted. So it became the law of the case: (1) That this is a suit to rescind and none other; (2) part of the petition that pleaded facts as constituting a rescission were not stricken and still remain in the petition; (3) while the petition sets out facts that might base an action in deceit, and while the prayer asks a money judgment, it is plain this prayer is based upon the petition as it was before said counts were stricken therefrom and dismissed by plaintiff, and the allegations of fraud found in the petition are not inconsistent with seeking a rescission, because the rescission asserted is based on the claim that fraud was practiced; (4) the court charged that recovery must be limited to what was paid by plaintiff and his assignors, with interest. The appellee makes no complaint of these instructions, and the measure of damages stated in the instructions is, as we shall presently see, the one due on rescission.

The conclusion reached at this point works an overruling of the position of appellee that, because appellant asked these counts to be stricken, and that appellee be made to elect, appellant may not now claim that this is a suit in rescission.

[3][4] III. There are 130 “errors relied on for reversal,” and they cover over 20 pages of small print. The 31 “brief points” are voluminous. It is neither permissible, desirable, nor practicable that an opinion should exhaust all this exhaustive material. Exhaustive as the presentation is, and though there is more “overpresentation” than we disapproved of in State v. Minilla, 177 Iowa, 283, 158 N. W. 645, many matters can be disposed of because their statement is too indefinite. As to others, no reference is given to the record. Still others consist of lump and blanket objections and of motions to strike the whole of the testimony of witnesses. Many times the objection is merely “incompetent, immaterial, and irrelevant” under conditions where such is not a sufficient objection for review. In others exclusions are complained of without profert of what was proposed to be proved where the circumstances are such that profert should have been made. Despite whatsoever exceptions to instructions may be added by an amendment to motion for new trial, some items may not be reviewed because the exceptions taken are inadequate; and many “errors relied on for reversal” are not reviewable because no brief point covers them.

[5] IV. Testimony received over objection was to the effect that defendant represented the land to be in a good agricultural country, in a good corn country; that it was in a good fruit country, and that he exhibited apples with claim they had been grown there; that all kinds of grain grew in that country; that this land grew from 70 to 100 bushels an acre, and wheat in proportion, all through; that it had been classed by the Canadian government as being No. 1 land, and “belonged to the first class”; that it was covered with a luxuriant growth of grass; that 25 per cent. of it was covered with timber; that there was no timber on the land except once in a while a poplar tree; and that a railroad had been surveyed to a point on or near it. We think that none of these were objectionable for being the mere statement of an opinion. Moreover, all these representations were pleaded in the petition, and no challenge was interposed to such petition.

[6] (a) Complaint is made that one Montgomery was permitted to testify to a naked conclusion. It is probably true that the question asked Montgomery did call for a conclusion. It was, “When you examined the soil of these four sections, did you reach any conclusion as to whether or not it was agricultural land?” Whatever vice there may be in the interrogatory it was cured by the answer. It did not state a conclusion, and no objection was made to it. The answer was that witness had knowledge of what constitutes agricultural land, and that the land in question was not such land. This is a statement by one competent to speak that certain lands examined by him were not agricultural land. If that be in any sense a conclusion, it is within the class of conclusions that may be received in evidence.

[7] (b) Ellis was asked what McManus said he wanted with him (Ellis), and answered: “Well, he talked about British Columbia land to me and my wife. He said he had the best proposition he ever got hold of to offer anybody.” It will be observed the question was not objectionable, and no objection to it was made. If there be anything objectionable, it is in the volunteer answer that McManus said he had the best proposition he ever got hold of to offer anybody. A proper motion to strike this volunteer statement was made, including that it was an expression of opinion and mere trade talk. The motion should have been sustained.

[8] (c) Good was asked what, if anything, McManus said to him in reference to the climate in that section, and answered that he stated it was an “ideal climate.” No objection was made to the question. But there is an assertion in the abstract that the witness did not give time for interposing such objection. Without deciding that such an assertion in a motion to strike proves the fact asserted, we have to say that it was not error to receive this testimony. It is in the nature of an opinion, but we think it falls within the rule that permits conclusions to be stated of necessity.

[9] We think the court was not in error in overruling the objection that same was incompetent, immaterial, and irrelevant to a question which asked a witness to describe as fully as he could the condition of the climate at a stated time.

[10][11][12] (d) The witness Rouse was asked on re-examination what he had to say as to the climate being substantially the same up where his wife's land is located as it is down by the Black Water. To this the objection that same was incompetent, irrelevant, and immaterial was sustained over due exception. He was next asked...