Opinion
February 17, 1925.
TRIAL: Instructions — Submission of Actionable and Nonactionable 1 Representations. It is erroneous for the court to submit to the jury both actionable and nonactionable false representations, without pointing out the essential distinctions between the same.
TRIAL: Instructions — Nondisputed Matters.
BILLS AND NOTES: Negotiability — Omission of Revenue Stamps.
Headnote 1: 38 Cyc. p. 1610. Headnote 2: 38 Cyc. p. 1515. Headnote 3: 8 C.J. p. 113.
Appeal from Cedar District Court. — JOHN T. MOFFIT, Judge.
ACTION to recover on promissory note. Defense of fraud. From judgment for defendant on the verdict of the jury, plaintiff appeals. — Reversed.
Hamiel Mather and Carl H. Lambach, for appellant.
J.C. France and C.J. Lynch, for appellee.
Briefly stated, the defendant bought 23 shares of stock in the Linograph Investment Company, and gave his note for $4,600, dated February 12, 1920, in payment therefor. It is on this note that the suit is based. This note was made payable to the Linograph Investment Company, of Davenport. It was, through indorsement, passed to the plaintiff, which bought the note. The jury, by its verdict, found that it was procured by fraud and false representations, and that the plaintiff had not established itself to be an innocent purchaser.
The errors assigned have mostly to do with the instructions; and no further statement of the facts will be made, except as the same may be necessary to the consideration of the objection to the instructions.
There are a number of alleged false statements set out in the plaintiff's petition, on which it predicates its action. Some of them are statements of facts; others are mere matters of 1. TRIAL: opinion. The court failed to cull out the instruc- statements that were properly a basis for an tions: action of this kind, and nowhere in his submission instructions distinguishes between those which of can properly be submitted as a basis for such an actionable action from those which are not properly and submitted, but gave a general instruction that non- mere matters of opinion could not be the basis actionable of such an action. We have repeatedly condemned representa- this practice, and have said that it is the duty tions. of the trial court to cull from the pleadings the exact matters to be submitted to the jury, and that it is bad practice, if not reversible error, to copy the pleadings and leave it to the jury to determine just what points are to be considered by them. Canfield v. Chicago, R.I. P.R. Co., 142 Iowa 658; Ashcraft v. Davenport Locomotive Works, 148 Iowa 420.
In view of the fact that this case is to be reversed, we suggest that, on the resubmission of the case, the above rule be observed.
Another rule of this court which the district court failed to observe is that nondisputed questions should not be submitted to the jury, and that by doing so the court commits 2. TRIAL: error. Thompson v. Thompson, 171 Iowa 583. instruc- tions: Evidence was offered in the case, over nondisputed objection, that the note, when it left the matters. maker's hands, did not have affixed thereto or canceled any revenue stamps, as provided by the Federal law; and on this question the court gave an instruction to the jury, the 3. BILLS AND substance of which is that, if such revenue NOTES: stamps were not attached to said note and negotiabi- canceled when the same was delivered, then the lity: plaintiff would not be an innocent purchaser in omission of due course. The court probably bottomed this revenue ruling on the then holding of this court in the stamps. case of Lutton v. Baker, 187 Iowa 753. This case has since been overruled by this court in the case of Farmers Sav. Bank v. Neel, 193 Iowa 685, and Richardson v. Cheshire, 193 Iowa 930. This probably accounts for this error in the instruction; and if for no other reason, this case would have to be reversed on this instruction. This being true, it is also apparent that the court erred in admitting the evidence of the want of these stamps on the note at the time it was delivered.
We have reviewed the other assignments of error, and find nothing on which a reversal could be based. For the errors heretofore pointed out, this case is reversed. — Reversed.
FAVILLE, C.J., and EVANS and ALBERT, JJ., concur.