(175 N.W.) "The court erred in sustaining said motion on the ground as stated in his decision and opinion, to wit: The ground based upon the request of defendant to the court that it should instruct the jury upon the law as stated in chapter 213 of the Laws of the 33d General Assembly; also the court should have submitted to the jury the questions: (1) As to whether or not the plaintiffs were conducting such business as was prohibited by chapter 213, Laws of the 33d General Assembly; and (2) whether or not the particular transaction involved in the case was not done in the prosecution of such business." sustaining the motion for a new trial on such predicated wholly upon section 4967. It is ground. The other assignments of error are true that the defendant in his answer pleadwholly formal and precautionary and charged ed that it was not contemplated either by error of the court in sustaining paragraphs plaintiff or defendant that there should be. 8, 10, 11, and 12 of the motion for a new any actual delivery of the commodity sold. trial. It is the contention of the appellant If the evidence on behalf of the defendant in argument, however, as already indicated satisfied the jury that the plaintiff as prothat none of the paragraphs in question were prietor or keeper did not intend actual desustained by the court. The only assignment livery, would the defendant's pleading preof error argued by the appellant is as fol- clude him from resting his case upon such lows: evidence? Or if, in addition to such evidence, he introduced evidence also to the effect that he had no intention of receiving delivery, would it be fatal to his case if the jury were to find adversely to him as to his own intentions, and yet find with him as to the intentions of the plaintiff as proprietor or keeper? If the defendant pleaded more than he was required to prove, was he, therefore, bound to prove all that he pleaded? We have always held otherwise. If the defendant had satisfied the jury that neither party had intended actual delivery, then he would have prevailed under both statutes. If he satisfied the jury that only the plainThe broad contention of the appellant is that the case is governed wholly by section tiff as proprietor and keeper did not intend actual delivery, then section 4967 ceased to 4967 and that section 4975d, has no applica- be applicable, and defendant would be ention thereto. Both of these sections purport titled to prevail under section 4975d. The to deal with bucket shops. The provisions plaintiff was not required to plead the statof both sections are concurrent in some respects. But the later statute adds some utes, nor to reduce his allegations to the measure of the one or the other, even though thing to the earlier one. Section 4967 proit be true that it would have been sufficient vides that it shall not apply in any case for him to plead that the plaintiff as prowhere an actual delivery is contemplated by either of the parties; that is to say, it prietor and keeper did not intend actual defurnishes no remedy against a fraudulent broker, who did not intend delivery of the thing sold, if his customer was honest in his expectations. In this respect, however, the effect of the statute is wholly negative. It issues no permit to the fraudulent broker, if such he be, to conduct his method of business even with customers of bona fide intentions. Section 4975d does furnish a remedy against the "proprietor" or "keeper" who does not intend delivery, and this even though the customer in good faith expects delivery. There is no necessary inconsistency between the two sections. [1] It is argued for appellant that section 4975d did not repeal section 4967, and that therefore section 4967 stands. Let it stand. But it is further argued that the last sentence of section 4967, unless repealed, stands in the way of the application of section 4975d to the case. There is nothing to be found in such sentence, except a limitation of the application of section 4967. We think it clear, therefore, that the case does involve a consideration of section 4975d as well as of section 4967, and that the trial court properly so held in his consideration of the motion for a new trial. [2] II. It is argued that the defendant is precluded by his pleading from invoking the aid of section 4975d, in that his pleading was livery. [3] III. It is further argued that the defendant did not properly except to instruction 5. The record shows that he did file written exceptions under the statute. His exception to this instruction includes the following: "Defendant further objects to said instruction because and for the fact that the same does not correctly state the law, in that it does not instruct the jury that if Harper & Ward, the plaintiffs, who were the proprietors or keepers of the brokerage office wherein the transactions involved in this controversy were made, did not intend that delivery should ever be made of the commodity sold or purchased in said transactions, these transactions were illegal, as provided in section 4975d of the Supplement to the Code of Iowa, and the other laws of the state of Iowa applicable thereto, and for the reasons herein stated defendant excepts to the giving of said instruction." Furthermore, instruction No. 7 contained the same vice as instruction No. 5, in that it emphasized the fact that there must have been an absence of intention to deliver on the part of both defendant and plaintiff. To this instruction the defendant made the following written exception: "Defendant further objects to instruction No. 7 given to the jury for the reason that the We think it was the clear right and duty of counsel for defendant at this point to adapt themselves to the view of the law already adopted by the court over their exception, and to soften as much as they could the emphasis of the court's instructions 5 and 7. same incorrectly states the law, and is confus-[ ing and misleading, and for the further reason that the instruction places upon the defendant the burden of proving that both he and the plaintiffs had no intention of receiving or delivering any grain in the transactions in controversy, such instruction being in law erroneous and incorrect, and tending to place a great-Surely we must recognize the right of an ater burden on the defendant than the law actual- torney to plead with the court for a modificaly places on them, and for such reasons defendant excepts to the giving of said instruction." We see nothing wanting in these exceptions to bring specifically to the attention of the court the very point which was urged in the motion for a new trial and which was sustained by the trial court. tion of erroneous views, where a complete correction of them appears impossible of attainment. Requested instructions 3 and 5 fairly appear to be an attempt to eliminate the emphasis of the instructions given by the court. In the light of the record they were clearly not intended as a waiver of the exceptions. Furthermore, the appellant in his brief specified his grounds relied on for a re [4] IV. It is further argued that the de- versal, and this is not one of them. See fendant waived his exception by his request-Johnson v. City, 173 N. W. 46; Cram v. City, ed instructions. The court having denied his 172 N. W. 23; Cheney v. Stevens, 173 Iowa, exceptions, and held in effect by instructions 288, 155 N. W. 248; McDermott v. County, 5 and 7 that section 4967 was controlling, the 171 N. W. 690. counsel for defendant requested the following instructions 3 and 5: "3. Defendant in his answer sets up as a defense the claim that the transactions concerning which this suit is brought were what is commonly known as dealing in futures or options, where in it was not contemplated by either party to the transaction that actual delivery of the commodity dealt in was to be made by either party, as the case might be, depending on whether the sale or purchase was involved, and that, on the contrary, all of such transactions were what is commonly known as gambling transactions, because of the fact that no such delivery was contemplated, and that the transactions were to be settled by an offset of the difference between the sale price and the purchase price as the case might be. You are instructed that, if you shall find from the evidence that the parties to the transaction concerning which this suit has been brought did not intend nor contemplate that the delivery or deposit of the commodity dealt in was to be made or accepted, and that settlement of such transactions was to be made by offsetting contracts for the sale and purchase of the commodity, as the case might be, and the payment of the difference, then your verdict must be for the defendant, and you will so render it; for the law declares that such transactions are but gambling transactions, and as such are illegal and void." "5. You are instructed that the law declares void all contracts for the purchase or sale of grain or produce, where there is no intention to make actual delivery of the grain or produce. You will first determine whether or not in the case before you there was actual, bona fide intention to make actual delivery of the grain or produce in the instances of the particular sales or purchasers out of which the claims sued on by the plaintiff arise. "If there was no bona fide actual intention to make actual delivery of the grain, then the plaintiff cannot recover, and your verdict will be for the defendant; but if you find there was the actual bona fide purpose and intent at the time to make actual delivery of the grain or produce, then such transactions were valid." | [5] V. It is claimed that there was no evidence to sustain the defense, and that the court should have directed a verdict for the plaintiff. A pivotal fact in the case was that of the intent of the plaintiffs. Such fact could be proved by defendant only by conduct and circumstances. It could be determined by the jury only as a matter of inference. Without going into detail, it was enough to say that the defendant had been a customer of the plaintiffs for three years, and during that time had bought ostensibly 275,000 bushels of corn, 320,000 bushels of wheat, and 135,000 bushels of oats. All the purchases were made from time to time upon small margins, amounting, however, to a sum total of $8,000. Not a bushel of these grains was ever delivered, nor was any warehouse receipt ever delivered. The only kind of delivery claimed by the plaintiff is that it had in its possession warehouse receipts which it would have delivered to the defendant at any time when he was ready to pay the purchase money. In none of these transactions did the defendant ever pay the purchase money. This evidence was proper for the consideration of the jury on the question of the intent of both parties or either. We think that the trial court did not err in granting a new trial. The order is therefore affirmed. LADD, C. J., and WEAVER, GAYNOR, PRESTON, and STEVENS, JJ., concur. SALINGER, J. (dissenting). The majority opinion indicates some trend to affirm this appeal because of defects in presentation. Considerable stress is laid on what is termed the assignments of error, and some little emphasis on what is "argued." It was settled in Jahr v. Steffen, 174 N. W. 109, that the form of the assignment of error, so called, is of so little importance that review may be had when it is entirely absent. It was settled, before (175 N.W.) a that, that whatever is the "brief point" [ ruling was made, it cannot be defended becontrols on review. The brief points do make cause of a ruling which did not exist at the two complaints clear, or perhaps it is more time of the offer. In such case the offer is accurate to say one complaint and not an attempt to limit the effect of an error subordinate proposition under it. The com- already committed, but a conclusive admisplaint is it was error to grant a new trial sion by the offerant that any instruction givon the ground that an instruction was erro- en in harmony with the offer is a correct inneous when in truth it was not erroneous, and struction. In one word to bring the matter that it was also error to grant a new trial, within the rule invoked by the majority, even if the instruction were erroneous, be- there must be some evidence in the record cause the new trial was granted to one who that the offer came after the exceptions. had induced the alleged erroneous instruc- There is no such proof. The abstract shows tion by an offer which the court accepted. nothing more than that the instruction was In my opinion, these propositions carry far-offered and that certain exceptions were takther than their face. The brief point invokes en. It does not even indicate at what stage every reason than can legitimately be sug- | of the trial these things were done, and which gested in support of the proposition asserted. of them was done before the other. Not only Every legitimate reason for a statement of is this so; everything indicates that the inerror cannot be and should not be set out instruction was offered before the exceptions the assignment. I know of no rule which requires the court to refrain from advancing reasons for dealing with the brief point, and the reasoning power of the court is not circumscribed by merely the reasons that the brief states in terms. The brief point says, in terms, that it was error to grant the new trial because the instruction for the giving of which it was granted was not erroneous, and that, in any event, the new trial should not have been granted because any injury suffered by the movant was self-invited by offered instruction. In my judgment, if this be found sound, there is no reason why it should not be further advanced as reason for reversing that the error was self-invited, not only by offered instruction, but by the form of the answer interposed, which also invited the giving of said instruction. were taken. The statute provides that either party may request instructions, that all requests therefor must be presented before the argument to the jury is commenced, and that all objections or exceptions must be made or taken before the instructions are read to the jury. It is matter of common knowledge in the profession that ordinarily there is no opportunity to except to instructions before the arguments to the jury begin. The cases are exceedingly rare where the charge would be ready for the examination of counsel before either addressed the jury. The instructions naturally wait until all the evidence is in, and the arguments ordinarily begin at once after the evidence is in. Some light is thrown on this situation by the fact that since this case was tried the Legislature has extended the time for taking exceptions to the charge to five days after verdict. I cannot see how the alternative rule has any room for application on this appeal. The way out attempted is an assertion that the case comes within the rule that one who has met an erroneous ruling as to which he has saved his objections is not estopped to II. My position is that, where an instruccomplain of that error on appeal, because he tion given is the equivalent of one offered by later offers an instruction seeking to guide a party, he is estopped to claim a new trial the court in applying the law it has announc- because such instruction was given. The esed. The trouble with this position is its prem-toppel urged is upon the party who seeks to ise. It is true that appellee did except to in-subject his adversary to the vicissitudes and struction 5, and therein complains, as he does now, that same was erroneous. The instructions are presumed to be correct. If one is erroneous, and the record shows that, in substance, it is one offered by a party, then to save the erroneous instruction it is, on appeal by that party, conclusively presumed that his offer induced the erroneous instruction. It is not presumed that the offer was made to guard the court in the application of an erroneous ruling already made against objection. That claim is, in effect, a claim that, because something occurred before the instruction was offered, such offer is not the acquiescence in the charge given, which, on its face, it appears to be. He who urges such avoidance must prove its predicate-that the exceptions were overruled, and overruled before he offered the instruction. If the instruction was offered before the erroneous Pac. 333. 175 N.W.-4 expense of a second trial because of some- Clifford v. Ry., 12 Colo. 125, 20 Town v. Ware, 63 Iowa, 349, 19 N. W. 275, [ the law. This is not a case of surplusage Collins v. Keokuk, 147 Iowa, 605, 125 N. W. in pleading. It is, at worst, a case of under231, Shepherd v. Brenton, 15 Iowa, 84, Riley pleading-a failure to claim as much as v. Monohan, 26 Iowa, 507, Stewart v. Ew-might be claimed. It is simply a case of a bank, 3 Iowa, 191, Mehan v. Railway, 55 party limiting his own lawsuit, as he had a Iowa, 305, 7 N. W. 613, Richards v. Nuckolls, right to do, and a recognition of that limita19 Iowa, 555, and Keys v. Francis, 28 Iowa, tion in the charge of the court. 321. I would reverse. The III. There is no change in statute law which makes the instruction erroneous. The older statute prohibits certain things, and has a proviso that it shall not apply to these things if either party intended in good faith to make actual sale and delivery. change in statute merely prohibits some things not prohibited in the original statute, and fails to apply the proviso of the older statute to the things forbidden by the new one. The exact effect is that the matters in the old statute are controlled by the proviso, while those in the new statute are not. The instruction given was not erroneous, because it gave the benefit of the proviso to facts within it, and doing this cannot possibly be made erroneous, because there are other prohibited acts to which the proviso does not apply. It seems to me that is the reason on which Lamson v. Mensen is affirmed. IV. The majority seems to grant that the original section still stands, and takes the position that that makes no difference. Does it not make a vital difference on whether the defendant is estopped by his answer from obtaining a new trial because of this instruction? If the original statute stands, is not that fatal to defendant because his answer was framed under that statute and the instructions merely followed such answer? Under the original section it was a good defense if both parties had no intent to make actual delivery. Grant that under the new statute it is a good defense, as to some things, if either party lacked such intent. It remains a good defense under both statutes that both lacked such intent. The defendant was at perfect liberty to frame his defense upon the older statute. If the new statute gave him an easier defense, still he had the right to forego that, and to defend with what is a defense under the older statute. He took that course. He was evidently of opinion that the matters involved in the suit were not covered by the new statute; that he must face the proviso in the older statute, and therefore made it his affirmative defense that both parties had no intention to make an actual sale. He necessarily assumed the burden of proving this. The instruction for which the new trial was granted did nothing more than to tell the jury that defendant had the burden of proving the plea he had presented. This, therefore, is not, as the majority seems to think, a case for invoking the rule that, though one plead more than he need, he may recover, though he prove less than that, if such proof makes a case under Evidence held to justify jury in finding that plaintiff's building, insured against tornado, cyclone, or windstorm, was destroyed by a "windstorm," as defined by the trial court in instructions. Appeal from District Court, Dubuque County; Robert Bonson, Judge. Action to recover on a cyclone, tornado, and high wind policy. Verdict and judgment for the plaintiff in the court below. Defendant appeals. Affirmed. George T. Lyon, of Dubuque, for appellant. lee. GAYNOR, J. On the 15th day of July, 1914, the defendant insured a certain frame building occupied as an icehouse, against loss or damage sustained by the assured occasioned by tornadoes, cyclones, and windstorms. On the night of January 16, 1915, between the hours of 7 and 8 o'clock, this building was blown down and destroyed by wind, and plaintiff brings this action to recover under the policy. The only question presented here by the defendants on this appeal, as indicated by his brief points, is the insufficiency of the evidence to justify the jury in finding that the injury to this building was due to the action of the elements insured against. We say this is the only question presented because it is the only question presented at all in conformity with the rules of this court governing the presentation of cases in this court for consideration. Under the head of "Errors Relied on for Reversal," we find the following: (1) The court erred in overruling defendant's motion for a directed verdict. (2) The court erred in overruling defendant's motion for a new trial. The errors complained of are presented in the brief points, and these brief points present only the question of the sufficiency of For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (175 N.W.) the evidence to justify the action of the court in overruling defendant's motion for a directed verdict, and in refusing to grant the defendant a new trial. upon the barn, and left marks upon the barn. There was little of the building remaining after the storm. The lumber was practically no good. It was broken and would make good kindling wood." We think this sufficient to carry the case to the jury, and we think it was sufficient to support the verdict of the jury. We cannot interfere. The judgment is therefore affirmed. Affirmed. LADD, C. J., and WEAVER and STEVENS, JJ., concur. This brings us back to the real point: Was the evidence, giving to it its most favorable consideration, sufficient to justify a jury in saying that the destruction of this building-for it was destroyed-was due to the action of a tornado, cyclone, or windstorm? The court instructed the jury in substance, and its instructions are not challenged here though challenged in the court below: There is no testimony that the wind that destroyed this building was a tornado or a cyclone. The allegations of the petition are that it was destroyed by a windstorm. A "windstorm," in contemplation of law, is a storm characterized by high winds, with little or no precipitation, and it takes its meaning, measurably at least, from the other words with which it is associated, to wit, tornado and cyclone. An ordinary gust of wind, no matter how prolonged, is not a windstorm. 1. JUDGMENT 17(3) - PERSONAL JUDGMENT In order to constitute a windstorm, the wind must be of such violence and velocity as to assume the aspect of a storm; that is, an outburst of tumultuous force. A windstorm means a storm of wind of force and violence. The burden of proof is upon the plaintiff to show that the icehouse in question was destroyed by a windstorm, and, if it has failed to prove this by a preponderance of evidence, you should return your verdict for the defendant. These instructions not being challenged here, we go directly to the evidence to ascertain whether or not it brings the case within the definition as given by the court. SHIPLEY v. SHIPLEY et al. (No. 32881.) (Supreme Court of Iowa. Dec. 19, 1919.) - ERRONEOUS ON SERVICE BY PUBLICATION. In suit against nonresident husband for separate support and maintenance, where he was served with notice by publication only, a personal judgment could not be rendered against him for support. 2. HUSBAND AND WIFE 289-PROPERTY OF NONRESIDENT HUSBAND SUBJECT IN SUIT FOR In suit for separate support and maintenance against nonresident husband, served by publication, held, court did not, in view of Code, § 3158, exceed its jurisdiction in ordering the allowance made to be paid out of income de rived and to be derived from estate of deceased mother of husband within the state, which income was payable by resident trustee to the husband under mother's will. It would not be profitable to set out this testimony. There is much that might lead us to believe that the falling of this building was not due to a windstorm such as defined 3. HUSBAND AND WIFE 286 SUIT FOR SEPby the court, yet there is evidence that there was a high wind. A watchman, who was in charge of the building and present at the time it was blown down, testified: "Well, it was no ordinary wind. I have been down there for six years, and I tell you it was as near a cyclone as anything I have seen. I have seen two cyclones. It was a terribly strong wind, and it lasted an hour to the best of my judgment. It came in kind of blasts and gusts." He further testified that part of the building of which the ice house was constructed was carried 60 feet away and thrown against a barn there located. Another witness testified: ARATE MAINTENANCE IS IN REM. Suit to set apart to complainant certain property as such or to fasten allowance for alimony as a specific lien on specified property is as definitely in rem as suit for divorce. 4. HUSBAND AND WIFE 2851⁄2-SUIT FOR FOR SEPARATE MAINTENANCE ONLY FOR CAUSE An action for separate support and maintenance may not be maintained except for cause which would warrant a decree for divorce; but such cause, as desertion, need not be fully matured. "There were boards from the icehouse strewn around the ground, blown around, and scattered in different directions. They were blown 6. HUSBAND AND WIFE 295-ALLOWANCE against the barn 40 or 50 feet away, and piled up against the barn. The force of the boards Temporary support may be allowed pendagainst the barn was sufficient to mar the painting suit for separate support and maintenance. PENDING SUIT FOR SEPARATE MAINTENANCE. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |