Elgin v. Banks

COBBS, j. Appellee sued appellants,' John E. Elgin and N. C. Sawyer, on a note for the principal sum of $400. The note was executed by G. H. Nagel in favor of Martin Nagel, and given as part payment for a certain lot, and was after-wards assigned by Martin Nagel to Thomas Y. Bank, appellee herein. The lot was sold by G. H. Nagel to John E. Elgin and wife, and they assumed the payment of the $400 note. Later John E. Elgin and wife sold the property to N. O. Sawyer, who assumed the payment of the said note. Appellants filed general demurrer and general denial. When Martin Nagel deeded the property to G. H. Nagel he took a deed of trust from G. H. Nagel, which described the $400 note and stated that the interest was “payable semiannually ; and after maturity at the rate of 10% per annum; containing the usual default and attorneys fees clauses.” It also provided that, in case of failure to pay interest, the taxes, or keep the improvements insured, the whole debt would mature. And that in case of sale by the trustee all recitals as to nonpayment of money should be true and the maturity of the debt, etc. The case was tried with a jury, and, upon their answers to special issues, judgment was entered against J. E. Elgin, and judgment was rendered against N. C. Sawyer on an instructed verdict. There was no other answer except general demurrer and a general denial filed. Of course, terms which in law have a distinct and fixed meaning, which ordinarily a person would not understand, should upon request be explained by the court. In this case we do not think the court should have explained to the jury the meaning of the word “delivered,” or defined the word “accept,” as both have a well-defined and ordinary meaning and significance and needed no explaining to an ordinary jury. They were used in their ordinary sense and without any peculiar technical significance or meaning, which an ordinary person would fail to understand. We do not think there was anything in the argument of counsel that calls for a reversal. The objection to the argument should ordinarily be called to the court’s attention at the time presented and not later. An argument as to what the law was, etc., may not be improper, but, if so, the trial court upon proper exceptions would control it, and instruct the jury not to consider it, but take the law from the court. We do not think there is anything in the exception that calls for a reversal, and it is overruled. *150 It would axjpear tliat the argument was harmless, and there was no reason to believe that it had a harmful effect. The verdict seems to be supported by sufficient legal evidence. Of course where counsel has made improper, erroneous, and prejudicial argument and improper remarks and an improper statement of law to the jury, it is material error for the court to refuse to instruct the jury not to consider the same. The court rendered judgment in favor of appellee against appellant for $483.50. Appellant contends on this appeal that by reason of an erroneous calculation of accrued interest the judgment is excessive in the sum of $3.58. Appellee does not challenge this contention, which is apparently' well founded. The judgment will be reformed accordingly. This contention was not presented with such particularity in the trial court as to apprise the court of the specific items or amount of the alleged excess, and the costs of the appeal will be taxed against appellant as in case of affirmance. The judgment will be reformed so as to decree recovery in favor of appellee against appellant for the sum of $479.92, with interest as decreed below, and as so reformed the judgment will be affirmed at the cost of appellant.