ON APPLICATION FOR REHEARING.
ELLIOTT, J.F. L. Stevens, plaintiff and appellee, alleges errors to his prejudice in the opinion herein rendered, assigning eleven in number, and supports same by brief.
In the first he alleges that we are in error in holding that his objections to testimony offered by defendant, are not urged in -his brief, and that all objections on that account had been abandoned.
In the sixth it is said that we are in error in holding that the depositions of Messrs. Stevens and Record were taken and introduced by plaintiff; same having been introduced by defendant over his objection.
The language to which he refers in these two assignments is that, in which after stating the case, we say:
“Objections were urged on the trial to the admissibility of the contract signed by the defendant and the Brenard Mfg. Co., to which the notes were attached at the time they were signed. The contract in question is annexed to and made part of the testimony taken and introduced by the plaintiff. The objections are not urged in plaintiff’s brief, and we take it that all objections on that account have been abandoned.”
The record bears out the statement in the opinion, except that the contract was not introduced in evidence on the trial by the plaintiff; it was done by the defendant. But the statement in the opinion is correct in all other respects, and it was in fact offered in evidence by plaintiff, and that fact prompted the statement in the opinion. It occurred in this way: *671The plaintiff Stevens acting by G. A. Kenderdine as his attorney, and the defendant Gaude, acting by W. R. Hart as his attorney, entered into a written agreement in the case a month or more before the trial, under which the testimony of the plaintiff Stevens and that of J. L. Record of the firm, Brenard Manufacturing Co., was taken by their mutual consent before I. M. H. Leuz, Notary Public, at Iowa City, Iowa, for the purpose of being used on the trial.
Mr. Stevens voluntarily appeared before the notary in Iowa City, and was examined in chief by Mr. Kenderdine, as his attorney, and was then cross-examined by Mr. Hart, as attorney for Mr. Gaude.
Mr. Record appeared before the notary public and was examined in the same way. Mr. Record on being examined in chief by Mr. Kenderdine, as attorney for Mr. Stevens, was asked:
“Q. Was the order to which you refer an oral or a written order?
“A. It was a printed order filled in and signed at Port Allen, Louisiana, on September 3, 1926.
“Q. Do you have that order in your possession?
“A. I do.
“Q. I now hand you this order marked Exhibit 1, and ask you if you know what it is?
“A. I do, it is the order to which I referred.” (Plaintiff offers Exhibit 1 in evidence.)
Exhibit 1 is the contract mentioned in the opinion. It was offered in evidence by the plaintiff, and as such was attached to the depositions, but when the same contract was subsequently offered in evidence by the defendant, the plaintiff, by hi& local counsel, objected.
The plaintiff could not object on the trial to what he had previously offered in evidence himself.
Plaintiff’s brief in this Court mentions the contract, but contains no argument against the permission which the trial judge gavd defendant to offer the contract in evidence and have it filed. We therefore thought the local objection had been abandoned, and so stated in the opinion. The argument advanced in plaintiff’s brief is not about the contract, but has reference to the depositions of Messrs; Stevens and Record, and to the offering of same by defendant.
One of the grounds of alleged error is that the Court permitted the defendant to offer in evidence the depositions of Messrs. Stevens and Record which had been taken in Iowa City, previous to the trial, and have them filed. The objection he urged was as follows:
“Plaintiff objects to the offering of the above testimony on the grounds that defendant has failed to establish that the notes were not acquired by plaintiff after maturity. (The word 'not’ inadvertently appears on the note of evidence.) And on the further grounds that he is attempting to establish fraud on the part of the plaintiff, without having alleged fraud on the part of the plaintiff in his petition.”
Plaintiff contends that we did not rule on the above exception, and that it was urged in his brief. This contention is the eighth assignment of errors in his petition.
The argument in plaintiff’s brief on this matter was not overlooked in this Court. It was given the same consideration as the other phases of the case. We noticed that the situation had been observed by the lower court in ruling. The right of the defendant to offer the depositions seemed so plain and the permission to do so by the *672lower court seemed so incontestable, that it did not occur to us in writing the opinion that the ruling should be acted on, and either set aside or affirmed, before passing to the merits of the case.
We now see that it would have been better, and that we should have taken up the ruling and acted on it, since it was urged, but the plaintiff has been, in no way, prejudiced by the fact that it was not done.
The following is our appreciation of the facts concerning the matter. The depositions of Messrs. Stevens and Record were taken by the mutual consent of the plaintiff Stevens and the defendant Gaude in Iowa City, and in taking same, each side appeared by attorneys. The evident purpose of taking the depositions in the case, at the time and place, was to use the depositions on the trial of the case. The parties embodied in their agreement on the subject, the following clause at the bottom:
“And that neither side shall make objections to questions at the time of taking the depositions, but it is agreed that all objections may be made at the time of the trial by either side, just as though the witnesses were actually on the stand in open court and testifying in said cause.”
The plaintiff could not, after giving his consent to the agreement and appearing voluntarily before the notary public and giving his answers to questions propounded by his attorney, and by the attorney for the defendant, as was done by Mr. Record, subsequently object by his local counsel to what he had done; that is, not on the grounds stated. He had the right, when the depositions were offered in the trial court, to point out any question or answer that he thought inadmissible, but he did not do that. His objection by local counsel was to the depositions of himself and Mr. Record as a whole. He could not offer an objection of that kind. Under the agreement either side was given the right to offer the depositions and have them filed, and neither side had the right to object, except, to particular questions or answers or some particular matter of fact. As a result of plaintiff’s consent, previously given, the offering by defendant was a mere formality which the lower court permitted because of plaintiff’s consent, and as to which there was no ground for contest and nothing in the permission given, which in writing the opinion seemed to us worthy of remark or review.
If the opinion had acted on the objection, we would have merely said that the lower court properly permitted defendant to offer the depositions in evidence and have them filed, because of plaintiff’s consent, previously given, that it be done. The plaintiff can not appeal from and have reviewed a matter to which he has consented. We therefore deem it useless to grant a rehearing for the purpose of formally acting on the ruling of the lower court permitting defendant to offer in evidence and' have filed, the depositions of Messrs. Stevens and Record, taken in the way, and under the circumstances stated.
Plaintiff assigns as error number two, that this Court érred in holding that the notes sued on had never been negotiated and delivered to the plaintiff Stevens, defendant having admitted same through his attorney, and he cites page three of the note of testimony.
We did not consider in arriving at our conclusion that the defendant had made any such admission, although plaintiff in his brief contended and still contends in his application for rehearing, that defendant had abandoned his defense that plaintiff did not acquire the notes before ma*673turity. He complains that the opinion does not refer to nor act on defendant’s admission.
The record shows on this subject, that when the defendant offered the depositions of Messrs. Stevens and Record in evidence, plaintiff, by his local attorneys, objected on the grounds heretofore stated: “That defendant has failed to establish that the notes were not acquired by plaintiff after maturity. (The word ‘not’ inadvertently appears on the note of evidence.) And on the further ground that he is attempting to establish fraud on the part of the plaintiff, without having alleged fraud, etc.” Defendant’s counsel answered the objection stating to the Court why he desired to offer the depositions in evidence, and saying:
“We prove by this testimony that Mr. Stevens is not a bona fide holder of these notes in due course. In other words we are trying to show bad faith. The evidence shows that in our pleadings I was wrong in saying that he had not acquired them before maturity.” (See note of testimony, bottom of page 2 and top of page 3.)
The pleadings to which he referred was the answer he had written in which .the defendant denied that plaintiff had acquired the notes before maturity, and in his saying: “I was wrong,” he had reference to the fact that Messrs. Stevens and Record had both testified in their depositions that Mr. Stevens had acquired the notes before maturity, and the only thing to the contrary was a matter of inference, and presumption. The question he was urging to the Court shows that it was not his purpose to make a formal admission that plaintiff had, as a matter of fact, acquired the notes before maturity. -The Court ruled that defendant could offer the depositions in evidence, and there is nothing in the ruling, nor in the note of evidence, indicating that an admission of the kind was intended. The plaitiff places a meaning' and effect on the language mentioned which cannot be justly nor reasonably accepted.
Plaintiff’s contention on this matter received our consideration. Our conclusion then and now, is indicated by our opinion on the merits of the case. ■
Plaintiff urges in his brief for rehearing that defendant does not charge him with fraud, and that the averments in his answer do not justify the opinion rendered on the merits of the case.
The answer denies plaintiff’s averments of good faith, that he gave valuable consideration for the notes and acquired them in due course, etc.
The answer alleges that plaintiff acquired them without consideration, in bad faith, and not in due course. That the defective title to said notes was obtained under circumstances amounting to fraud and breach of faith bn the part of the Brenard Manufacturing Company, its agents and employees, and that plaintiff had notice of this defective title, and did not purchase the notes, etc.'
Defendant’s allegations are sufficient for the purposes of the opinion rendered.
The plaintiff alleges in his petition for rehearing and supporting brief other errors, numbers, three, four, five, seven, nine, ten and eleven, hut these contentions all come within the scope of the merits, and were taken into account, considered and disposed of in the decision on the merits.
We have given the case, and plaintiff’s contentions, reconsideration, and our original opinion herein remains unchanged.
Rehearing refused.