Wood v. Whitton

• Decision Date: 04 June 1885
• Parties: WOOD v. WHITTON.
• Court: Iowa Supreme Court

66 Iowa 295

23 N.W. 675

WOOD

v.WHITTON.

Supreme Court of Iowa.

Filed June 4, 1885.

Appeal from Floyd circuit court. Opinion on rehearing.

BECK, C. J.

1. A rehearing was allowed in this case upon the petition of defendant, and the cause, after another argument, has been again submitted. In the former opinion, (19 N. W. REP. 907,) through mistake, the last three assignments of error were not set out. Because of this mistake the rehearing was granted. These assignments of error are as follows: “(14) The court erred in overruling defendant's motion for a new trial. (15) The court erred in refusing to give to the jury the first, second, third one-half, fourth, fifth, sixth, ninth, eleventh, thirteenth, fourteenth, fifteenth, sixteenth, and seventeenth instructions asked by defendant, and each one thereof. (16) The court erred in modifying the third instruction asked by defendant and giving same.” The fourteenth is not sufficiently specific to comply with Code, § 3207, cited in the original opinion, which, in addition to the language there quoted, declares, touching an assignment of error, that, “among several points in a demurrer, or in a motion, or instruction, or rulings in an exception, it must designate which is relied upon as error, and the court will only regard errors which are assigned with the required exactness.”

There were 18 special grounds assigned by the motion for a new trial, each presenting different questions of law. The fourteenth assignment assails all these grounds, without specifying any particular error. This manner of assigning errors is forbidden by the section of the Code above cited. In addition to the cases above cited, see Oschner v. Schunk, 46 Iowa, 293;Hawes v. Twogood, 12 Iowa, 582;Todd v. Branner, 30 Iowa, 439.

2. The fifth point of the foregoing opinion is incorrect in stating that there were no assignments of error assailing the rulings of the court in refusing the instructions asked by defendant and in modifying the third instruction asked by defendants, and in refusing the others. This conclusion resulted from the mistake above stated in overlooking the fifteenth and sixteenth assignments of error. The fifteenth assignment of errors, under Sherwood v. Snow, 46 Iowa, 481, is sufficient to require the consideration of all the instructions refused, which are discussed by counsel in their original argument, to which we will now proceed.

3. The third instruction referred to in the sixteenth assignment of errors was to the effect that the agreement involved in the action must be found to be supported by a sufficient consideration. The modification complained of is to the effect that the surrender of a certain contract, and the possession of certain lands which were covered thereby, would constitute a sufficient consideration. The modification, we think, is correct. Surely it announces a correct rule of law.

4. It is insisted that the twelfth instruction, noticed in the eighth point of the foregoing opinion, is erroneous, for the reason that there is no issue in the case to which it is applicable. The ground of this objection seems to be that, as it is claimed the petition declares on a contract arising upon the acceptance on the fifteenth of February of a proposition made by letter of defendant on the tenth of the same month, the instruction under consideration holds that the letter of plaintiff dated March 15th constitutes an acceptance. But the position of defendant's counsel does not accord with the facts as exhibited by the record. The petition does not allege that the acceptance of the proposition was by letter, but simply that upon the receipt of the letter of defendant, he was notified of plaintiff's acceptance of the proposition.

5. The first instruction asked by defendant was rightly refused. It is based upon the thought that the jury should only look to the letter of defendant of February 10th and defendant's letter of the fifteenth of the same month in order to determine whether there was a contract, and its terms. In support of this instruction counsel insist that the petition declares...