Brier v. Davis

Weaver, J. Thomas Davis, of Central City, Iowa, was the owner of a mill in that town. His cousin Thomas F. Davis, of Mt. Vernon, Iowa, holding a mortgage on the property, or some part of it, foreclosed the same, and obtained a sheriff’s deed. Between the date of the sheriff’s sale and the delivery of the deed, William Brier, father of plaintiff, desiring to purchase a mill for his son, applied, to Thomas Davis, who, it is claimed, pointed out to Brier the boundaries of the property, including the mill and dam, and lands bordering the river on either side. The [60] parties were not able to agree on the terms, and Brier returned to his home. Later, and apparently after the sheriff’s deed had been delivered, Brier heard that Thomas F. Davis was the owner of the property, and upon application to him a sale and conveyance were effected for the sum of $3,000. It is the claim of plaintiff that, on being applied to for the purchase of the property, Thomas F. Davis stated and represented, in substance, that he owned, and .would sell and convey for the price mentioned, all the premises included in boundaries pointed out by. his cousin Thomas Davis, and that plaintiff and his father, not being acquainted with the descriptions made use of in the deed, accepted the conveyance in the belief that it embraced the entire.mill property, as designated by the said Thomas Davis. It is further charged that the deed, as made and delivered by Thomas F. Davis, does not include or convey the milldam or water power upon which the operation of the mill depends, and does not convey other lands pointed out by Davis, whereby the property conveyed is rendered practically worthless. Other misrepresentations are charged, but the controversy turns chiefly upon the one to which we have referred. I. Error is assigned upon the ruling of the trial court in admitting testimony as to the contents of certain letters written by the defendant. Standing alone, some of -the rulings in this respect may fairly -be held objectionable; but the matters thus developed, in the main, seem tohaye been admitted at another stage of the trial without objection. Other rulings in relation to the letters were correct. These letters were received in the family of which plaintiff was a member, and were read by some of them, and listened, to and discussed by all; and, upon proof of the loss of the writing, we see no reason why the witnesses were not competent to state the substance of the communications. Numerous other objections are raised to the testimony offered by the plaintiff, but it is impracticable to discuss [61] them in detail. Of many of these objections it may be said they are not sufficiently specific to raise the questions argued in this court. According to some authorities the sweeping assertion that testimony is “incompetent and immaterial,” or “irrelevant, incompetent and immaterial” does not apprise the court of the precise point upon which counsel relies, and error cannot be predicated upon the refusal of the court to entertain it. Jones on Evidence, 897. Waiving the point, however, we have examined the record upon the admission of evidence, and find no error in the rulings. II. The defendant asked the court to submit special interrogatories to the jury as follows: “(1) If you find that defendant sold to plaintiff more land than described in his deed, state the description of the land, and also its value. (2) If you find that plaintiff is entitled to recover anything against the defendant, then state in answer to this interrogatory the amount you find: First. What amount on claim for defective roof? Second. What amount on claim for damage because the mill could not earn as much per day as represented. by the defendant? Third. How much do you find for insufficient water power?” These requests were refused, and the ruling is, in our judgment, correct. Both interrogatories are compound, calling for findings on several distinct propositions, and thereby tend to confuse the jury. Neither do they call for the ultimate facts upon which plaintiff’s right of recovery depends. No claim is made that defendant sold more land than he conveyed, but that he pointed out or designated lands which the conveyance does not include. The damages claimed by plaintiff cannot be apportioned or itemized, and, if he is entitled to recover, it is for the damages resulting from the defendant’s misrejn'esentations as a whole, and not for the aggregate of distinct and independent items on account of various misrepresentations considered severally. Appellant also asked eleven different instructions, which were refused. Some of these in [62] structions stated correct and pertinent propositions of law but the charge given by the court appears to cover the same ground. The several paragraphs of • the charge, taken together, contain a sufficient and correct statement of the law of the case. IIL The legal propositions advanced by counsel on either side are mostly of an elementary character, and we have, therefore, not entered upon any discussion of them. The controversy is essentially one of fact, and the only serious question is whether the alleged misrepresentations have been sufficiently sustained by the testimony. In our judgment, however, there is not such a lack of support for the verdict as will permit us to interfere. We find no reversible error, and the judgment of the district court is aefieMed.