Crawford v. Athletic Ass'n of the University of Nebraska , 111 Iowa 736 ( 1900 )

Given, J.

I. This controversy arises out of the following facts: August 24, 1893, the defendant association entered into a written contract with the plaintiff “to coach, train, and instruct to the best of his ability the University of Nebraska football team during the season of 1893,” and agreeing to pay him five hundred dollars therefor. Plaintiff rendered the services, and received three hundred and seventy-five dollars on account thereof. On Thanksgiving Day, 1897, a game was played at Council Bluffs by the teams of the universities of Iowa and Nebraska, and the money in dispute is of that part of the gate receipts that was to go to the association of the University of Nebraska. The claim of the plaintiff is that the association entitled to that money is the same association that is indebted to him; in other words, that the defendant and intervener are one and the same. The intervener claims that it is a new and entirely distinct and separate association other than the defendant. The case was tried and submitted upon this issue, and the jury, as it well might, found for the plaintiff thereon.

1 II. Appellant’s first contention is that the court erred-in holding as a matter of law, “in its ruling on the objections to the testimony and in its instructions,” that the defendant “had a legal existence, was a legal entity, could he sued and could enter into and could make the contract with the plaintiff; and that intervener could succeed to such supposed liability of the defendant.” The record fails to show that such a question was raised or ruled upon in the lower court. The appellant’s abstract does not show a single objection or ruling in taking the evidence, and the exception to instructions is “to the giving of each and every one,” which has been uniformly held to be too general. Appellee’s abstract shows hut two objections and rulings on evidence, and those as to the identity of the two associations. This contention was not made in the motion for a new trial. This case was tried through without question as to the capacity, right, or liability of either association to sue or be sued or to intervene. It is presented in this court for the first time, and therefore, under repeated and uniform rulings, cannot be considered.

2 III. Appellants contend that the verdict is contrary to the evidence; hut not so, we think. True, there were some changes in the officers, membership, and name of the Athletic Association of the University of Nebraska, hut the jury were fully warranted in finding that they were- only changes, and not the organization of a new and different association. The association, being the same, should not be allowed to avoid paying its honest debts by reason of these changes.

3 Complaint is made against the first and second instructions given, but, as they were not properly excepted to, the complaint may not be considered. We may add that the complaint seems to he without merit. We find no error, and the judgment is affirmed.