ADAMS v. SHIRK et al., 104 F. 54

WOODS, Circuit Judge, after stating the case, delivered the opinion of the court., But few of the numerous specifications of error insisted upon present any question. The first, second, third, fifth, and seventh allege error in the admission or exclusion of evidence, but do not, as required by rule 11 (31 C. C. A. cxlvi., 90 Fed. cxlvi.), quote the substance of the evidence admitted or rejected. The iourth conforms to the rule in that respect, but the evidence referred to was of so little importance that a ruling one way or the other upon the motion to strike it out could not have been a material error.

The tenth to eighteenth and twenty-ninth to thirty-fourth specifications each allege error of the court in holding or not holding as stated, but, if the court so held, it must have been in giving or refusing instructions, and it should have been so specified. Woodbury v. City of Shawneetown, 34 U. S. App. 655, 20 C. C. A. 400, 74 Fed. 205; Columbus Const. Co. v. Crane Co., 41 C. C. A. 189, 98 Fed. 946, 101 Fed. 55.

The eighth, ninth, nineteenth, and twentieth specifications are to the effect that the court erred in not directing a verdict for the defendant; but the eighth the defendant waived by adducing further evidence after the ruling was made.

The ninth specifies no particular in which there was supposed to be a lack of evidence; and while, in the nineteenth, the direction was asked “because of tender of all the rent sued for by Petterson to plaintiffs,” and in the twentieth “because no notice was given by the plaintiffs to defendant of nonpayment by Petterson of rent sued for,” it does not appear that either reason was suggested to the court at the time or before the motion for a peremptory instruction was denied.

The bill of exceptions states simply that, all the evidence being in, “thereupon the defendant moved the court to hold the evidence insufficient to sustain the action, and to direct a verdict for the defendant”; but such a general motion, unaccompanied by a statement or suggestion of reasons for it, may properly be overruled. A practice is not to be approved which will permit of the presentation for review by this court of questions which are not shown to have been called 'to the attention of the trial court. Columbus Const. Co. v. Crane Co., supra; Stewart v. Morris, 37 C. C. A. 562, 96 Fed. 703.

The twenty-first specification, instead of being limited to the assertion of a single error, as rule 11 requires, presents three questions, which, though closely akin to each other, are yet distinctly different. There was, however, no error in refusing the special instruction set out in that specification.

By the terms of the original lease the insurance provided for was to be payable to the lessor, and, while a notation upon the policies of the consent of the insurance companies to the assignment of the leasehold may have been necessary, there was apparently no right in any one to ask an assignment of the policies to Petterson; and, even if there was such a right, no loss having occurred, we are not ready to assent to the proposition that the refusal of Shirk to produce the policies for the purpose of assignment is a defense to the action for accrued rent.

What was the effect of the tenders made by Petterson to Shirk depended, perhaps, on other questions and propositions not embraced in the special instructions which were asked and refused. In no event could a tender made by Petterson be of effect unless Hliirk, as against Adams, was bound to accept it. If, after his assignment to Petterson, Adams was not responsible for the rent, the question was irrelevant and immaterial, and the refusal of the instruction of no consequence.

It could be of importance only upon the theory that Adams remained liable for the rent, but by reason of the assignment, which to that extent Shirk was bound to recognize as valid, he had come into the position of surety for Petterson, and therefore was discharged by the refusal of Shirk to accept the proffered payment. If that relationship’ of the parties was a question of fact on the evidence, the special instruction asked should have been so framed as to submit the question to the jury. As drawn, the instruction assumes everything essential to' the proposition except the fact of tender.

If that fact was a defense to the action against Adams, it is equally a bar to- the right of the lessors “to proceed against the improvements or against the original lessees.” We are of opinion that on the facts disclosed Shirk was justified in rejecting the tender. In the original lease it was stipulated that the lessees and their assigns should make no transfer of the [leasehold except by way of mortgage or trust deed except upon the [written consent of the lessor. Whether or not, without further stipulation, that restriction would have bound Adams, it is not neees-|sary to consider.

A further stipulation was made. He accepted li u assignment by which, in express terms, “for himself * * ⅞ Imd assigns personally,” he assumed “all the terms, covenants, and Lgreements in said lease contained,” but with the modification expressed in the writing of the same date, signed by the Shirks, that, In case he should thereafter assign the lease “to some responsible lerson” who should be “satisfactory” to them, they would consent to ie substitution of the assignee, and release him and Ms estate from Birther liability.

Assuming that the document signed by the Shirks as executed upon a sufficient consideration, and became binding, Bdains acquired thereby the right to transfer the term to a “re-Bonsible party” Who should also be satisfactory to the lessors. The of that provision, in our opinion, was that, when Adams proposed a transfer to Petterson, be was bound to sliow to a reasonable certainty that Petterson was pecuniarily responsible, and of such repute for honesty, capacity, and fair dealing as ought to make him satisfactory.

Shirk, for himself and his associates, doubtless was bound to act fairly and reasonably, but he was not required to go out of his way to establish, or to convince himself of, the suitableness of the proposed substitute.

It was not enough, as indicated by that portion of the court’s charge set out in the twenty-fifth specification of error, that Adams should have ‘‘furnished a person whom he believed to be satisfactory.” It was a question, not of belief, but of actual responsibility and fitness, and, there being in the record no evidence that Petterson was responsible and otherwise of acceptable character, and there having been no arbitration to supply- the place of such evidence, all charges that Shirk did not act in good faith become of no consequence.

For all that appears in the record, it is to be assumed, as between the parties, that Petterson was not responsible, and in other respects was not one who should have been accepted as a satisfactory substitute for Adams. What the measure of pecuniary responsibility should have been, in the absence of express stipulation, .if disputed, would have • to be determined according to the circumstances; but, in the absence of proof, it would seem unreasonable that Adams should insist upon the acceptance of a substitute less responsible than himself.

Direct evidence on the subject was not offered, but facts are shown which indicate that Petterson was largely indebted to Adams and others, and consequently his responsibility questionable. Shirk was, therefore, as we think, justified in refusing to recognize him as tenant, and in insisting, as he did, that he would accept no rent from him unless paid on behalf of Adams, his recognized lessee. We do not agree that the only remedy of the lessors for the wrongful transfer of the leasehold was a re-entry or other proceeding to forfeit the lease.

The putting of Petterson in possession the lessors could not prevent, but they could insist, as they consistently did, that as to them the transfer was wrongful, and that they would regard 'Pet-terson as holding for Adams. It may be that, as between Adams and Petterson, the transfer was valid; but it does not follow that the lessors were bound either to proceed to forfeit the lease, or, failing to do so, must be held to have acquiesced in the assignment and the consequent conversion of the primary and absolute liability of Adams into a mere suretyship for Petterson.

A forfeiture of the lease was just what Adams greatly desired to accomplish. He had offered to surrender it to Shirk for nothing, and, being denied that privilege, entered upon the negotiations to procure the substitution of Petterson in his place as lessee; but it was not in his power, by the course pursued, to compel the desired forfeiture or his own discharge through the enforced acceptance of a substitute of whose responsibility and fitness he offered then and at the trial no proof.

I It follows that the instructions asked on the subject of the tenders made by Petterson were properly refused, and that the instructions given of which complaint is made in the twenty-fourth and twenty-l fifth specifications of error were more favorable to the plaintiff in| error than they need have been. The twenty-sixth specification has reference to the exclusion of evidence concerning the financial responsibility of one Wylie, to whom Pederson made an assignment of the term.

It was properly excluded, because it had “nothing to do with the issue in (his case.” The twenty-eighth specification — the last to be considered — is that the court erred in overruling the motion in arrest of judgment. The grounds of the motion, as stated, are: “

(1) The declaration does not state a good cause of action.

(2) There is a fatal variance between the allegations of tlie declaration and proof. (») There is no jurisdiction of the matter involved in this canso [except] on tlie chancery side of this court.

(4) There is no jurisdiction of this cause in tlie United States court for want of proper citizenship of tlie parties.” The second ground is irrelevant. A motion in arrest raises no objection to the evidence (2 Enc. Pl. & Prac. 813), but challenges the sufficiency of “the facts of record, apart from any showing by bill of exceptions,” to support the judgment (World’s Columbian Exposition Co. v. Republic of France, 33 C. C. A. 333, 91 Fed. 64). The first and fourth are unavailing, because of the sufficiency of the declaration and of the diverse citizenship of the parties there is no. ground for question.

The objection that the suit should have been on the chancery side of the court would have been formidable if made in time. The bringing of the action at law is justified by the decision in Insurance Co. v. Hanford, 143 U. S. 187, 12 Sup. Ct. 437, 36 L. Ed. 118, but that decision, it is insisted, is a departure from the well-established rule declared in earlier and later cases, such as Fenn v. Holme, 21 How. 481, 16 L. Ed. 198; National Bank v. Grand Lodge, 98 U. S. 123, 25 L. Ed. 75; Furnace Co. v. Withrow, 149 U. S. 574, 13 Sup. Ct. 936, 37 L. Ed. 853; Lindsay v. Bank, 156 U. S. 485, 15 Sup. Ct. 472, 39 L.

Ed. 505. It is enough here to observe the settled rule of practice that an objection of this kind must be made promptly, and, if delayed, as in this instance, to the end of the trial, will be overruled. In this case the objection was patent on the face of the declaration, but. so far as appears, it was first brought to the attention of the court: by the motion in arrest. The judgment of the circuit court is affirmed.