Sawyer v. Hawthorne
| Citation | 158 N.W. 665,178 Iowa 407 |
| Decision Date | 29 June 1916 |
| Docket Number | 30839 |
| Parties | H. H. SAWYER, Appellant, v. W. S. HAWTHORNE et al., Appellees |
| Court | United States State Supreme Court of Iowa |
REHEARING DENIED FRIDAY, NOVEMBER 17, 1916.
Appeal from Polk District Court.--W. H. MCHENRY, Judge.
APPEAL by plaintiff from an order granting a new trial.
Affirmed.
H. H Sawyer and J. E. Holmes, for appellant.
C. J Eller, for appellees.
I.
On the former trial, the jury was directed to return a verdict for the defendant. On appeal, this ruling was reversed. 167 Iowa 410. On remand, an amended and substituted petition was filed, to which Margaret C. Hawthorne answered. She also filed a counterclaim, which was replied to. The issues thus raised were included in the original pleadings. The cause was again tried and submitted to a jury, which returned a verdict for plaintiff. Thereupon, a motion for new trial was sustained generally, and the appeal is from this ruling. Thereupon, plaintiff moved that the court specify the grounds on which the order for new trial rested. This motion was overruled. Such a ruling is tantamount to saying that the order rested on all the grounds, for it cannot be assumed that any court would deny a party all the advantages won in a trial without being willing, on request, to specify the precise grounds for its action. It is easy for a party to conjure up any number of grounds, tenable or untenable, in a motion for new trial, and it would be unfair to litigants to rule thereon generally, without indicating what has led the court to declare the proceedings a mistrial and require all to be done over again. So it was said in Loose v. Cooper, 141 Iowa 377, 118 N.W. 406, that "it is better to set out the grounds of the ruling in the record." In Turley v. Griffin, 106 Iowa 161, 76 N.W. 660, it was said that "appellant was not interested in what plaintiff put in his motion, but only in what matters the court considered." See, also, Hensley v. Davidson, 135 Iowa 106, 112 N.W. 227. For these reasons, we shall assume that the court, in overruling the motion to specify grounds, asserted that all the grounds enumerated were well taken.
II. The evidence was substantially the same, in so far as it bore on the issues raised, as on the former trial, and, of course, in view of the opinion on the appeal, might not be challenged as insufficient to sustain the verdict returned. Two grounds of the motion, then, may be eliminated at the outset: "(4) the verdict is contrary to law; (8) there is no evidence to support the verdict."
The eighth ground, i. e., that "the verdict is excessive and no evidence to support the verdict as to amount of damages," may also be disregarded because the verdict assessing the damages in the sum of $ 330.70 was amply sustained by the evidence.
Four grounds of the motion are based on alleged error of the court in the first, second, fourth and fifth instructions to the jury. No objections whatever were urged against these instructions previous to filing the motion for new trial, and no showing was made in said motion that an error in such instructions was not discovered at the time of the trial. This being so, neither the trial court nor this court may consider any objections or exceptions to said instructions. Section 3705-a, Code Supp.; 1913; State v. Nott, 168 Iowa 617, 149 N.W. 79.
The only objection to Instructions 5 1/2 and 6 urged prior to the reading of these to the jury, was that they authorized the assessment of the $ 50 paid down as part of the damages, in event recovery was had by plaintiff.
As will be recalled, the action is based on the alleged failure of defendant to perform a contract for the sale of house and lot in the city of Des Moines. Upon its execution, May 6, 1911, plaintiff paid on the purchase price the sum of $ 50. The court instructed the jury that, if they found for plaintiff, the measure of damages would be the difference between the contract price and the market value of the land, and, in Instruction 5 1/2, that there should be added thereto the $ 50 paid. Manifestly, this was correct; for, if defendants declined to perform without legal justification for so doing, the plaintiff would be entitled to recover the money paid on the purchase price, together with the difference between the contract price and market value, if the latter is the more.
Another ground of the motions was that "the court erred in refusing to give instructions requested by the defendants." As none were requested, this is easily disposed of.
III. The sixth and seventh grounds of the motion are that the court erred in overruling objections to questions propounded by plaintiff, and in sustaining those to questions asked by defendants. Though a blanket assertion of this kind demands scant attention and is too indefinite for review on appeal, yet the rulings as made might be challenged as erroneous on appeal. For this reason, we have examined the record with care, and discover no errors in the rulings on the admissibility of evidence. Nor does counsel for defendants in his brief assert that any were committed.
IV. The ninth ground was that "the jury found that the plaintiff was in default and...
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