Sweeney v. Pacific Coast Elevator Co.

The opinion of the court was delivered by Scott, J. The respondent objects to the consideration. of many of the matters discussed in appellant’s brief on the ground that the same were not raised in the court below, and contends that there is but one matter argued therein which is properly before this court for consideration, and that is the refusal of the court to try the matters alleged in the eighth, eleventh, twelfth and thirteenth subdivisions of appellant’s -answer, as equitable issues, or to refer the same for ■determination before a trial of the other issues by the jury. The objection of the respondent is in the main well taken, as no ruling of the court, aside from this particular one, is pointed out in appellant’s brief as error. Only one of the instructions given is questioned here and that one was especially excepted to upon a different ground from that now urged and for "that reason it is not entitled to consideration. The appellant contends that all of the matters argued in its brief are properly before this court in consequence of its having made a motion for a new trial upon the statutory grounds, which was denied by the court. Appellant’s main contention, aside from the one relating to the refusal of the court to try certain of the issues as equitable issues, or by a reference, goes to the form of the action, in that the testimony showed a variance or a failure of proof. It does not appear [564] that any objection was made to the admission of this evidence, however, nor that there was a motion for a. non-suit on account of failure of proof, or any request for an instruction to the jury to find for the defendant for such reason, and the matters alleged or complained of are, therefore, not available as relating to the form of the action, and at most can only raise the question, as to whether the evidence was insufficient to sustain the verdict; and as, after an examination of the record, we are satisfied that there was evidence sufficient for that purpose, there was no error in the premises. No recovery against the plaintiff was sought by the-defendant, and the matters pleaded, which it contends, raised equitable issues, related to an estoppel, and this-is available as a defense in an action at law as well as one in equity. Certain credits were pleaded in this connection as having been given to the plaintiff by the defendant, and in its prayer the defendant asked that in case the court should find that such matters were not available as an estoppel, it be allowed the same as a counterclaim, and asked for an accounting with respect thereto. But we do not think that the matters pleaded involved the examination of such an account as to require the court to send the same to a referee for determination, and that it was no abuse of the discretion reposed in the court to submit said matters to the jury, even though it were competent, for the court to segregate the issues and try certain of them as equitable ones, or by referee, and the remainder of them by jury where the action is brought as one at law. Being of the opinion that no error was committed,, the judgment is affirmed. Anders, Dunbar and Gordon, JJ., concur.