(dissenting).
Matt contended at trial that no agreement was made at all. He also contended that if an oral agreement was made, it merely constituted preliminary negotiation to a written contract to follow.
On the subject of contracts generally, the trial court stated in instruction 4:
You are instructed that, for the purposes of this case, a contract is defined as an agreement between two parties, by *878which each party agrees to do a specified thing or things, or to perform a specified act or acts. [The instruction continued regarding consideration and mutual promises as a contract.]
On the specific problem of preliminary negotiation as distinguished from a contract to follow, the trial court stated as part of instruction 5 :
An oral contract is to be distinguished from oral negotiations or discussions which are preparatory to or part of the preliminary dealings of the parties attempting to reach an oral or a written contract. If you find that the oral communications of the parties, if and as shown by the evidence in this case, were only oral negotiations or discussions which were preparatory to or part of the preliminary dealings of the parties attempting to reach an oral or a written contract, then no contract would have been established as claimed.
Among other exceptions, Matt took the following one which the trial court overruled and on which Matt now relies:
Defendant excepts to the instructions as a whole and particularly as to Instruction 4 thereof as it relates to the general discussion by the Court of the law of contract for the reason that nowhere in the instructions does the Court advise the jury as to the significance of the elements of intent to be found or not found by them from the evidence as the same establishes or does not establish the existence of a contractual relationship between the parties. The instructions in their present form omitting any reference to or instruction concerning the matter of intent of the parties is particularly prejudicial to the defendant in this matter because of the nature of the evidence claimed by plaintiff to establish the existence of a contract and the nature of the evidence of defendant establishing ignorance of any contract. The instructions as a whole are deficient in this matter of tying the element of intent of the parties to the legal requisites of the contract and the factual showings of the parties relative thereto.
Since the jury by its verdict for the Cooperative must have found an agreement was made, Matt does not in this court press the contention that such agreement was not made, and frankly states that “R. C.P. 344f(2) commands us to view the evidence here in the light most favorable to the plaintiff-Appellee Cooperative”. But Matt assigns as error, and argues at length, the failure of the trial court to instruct on intent of the parties as to “whether the orally negotiating parties were bound before signing the writing it was claimed he agreed to sign”.
In the statement of the case in his brief, Matt says this:
Defendant further excepted to the failure of the Court to instruct the jury as to the element of intent of the parties as to whether their relationship was to become contractually binding with or without signing a written contract. (Italics added.)
And he states his second assigned error thus:
Even if the alleged oral contract of the parties in the corn transaction claimed should have been submitted to the jury, the trial court erred in not instructing as to the vital significance of the intention of the parties, as to when, or if, they contemplated they would be contractually bound, whether a writing was or was not signed; the trial court erred in overruling Defendant-Appellant’s exceptions to the instructions and its motion for new trial based on this deficiency. (Italics added.)
The difficulty is that the italicized portions of the statement of the case and of the second assigned error are not contained in the exceptions taken in the trial court. Those italicized portions constitute the heart of the second assigned error; they *879are the “deficiency” Matt now urges. The exception did not mention the parties’ intent “as to whether their relationship was to become contractually binding with or without signing a written contract” — the point Matt now urges. The exception taken dealt with intent generally in the making of contracts and expressly called the trial court’s attention to Matt’s evidence establishing ignorance of “any” contract. As to intent in the making of contracts generally, see 17 Am.Jur.2d Contracts § 18 at 354; 17 C.J.S. Contracts § 31 at 635. As to intent on the distinct issue of determining whether an oral agreement or a writing is to be the contract, see 17 Am. Jur.2d Contracts § 28 at 363; 17 C.J.S. Contracts § 49 at 695.
Had Matt excepted in the trial court on the ground that the instructions did not cover the parties’ intent “as to whether their relationship was to become contractually binding with or without signing a written contract,” and especially had he called the trial court’s attention to instruction 5 in which the court dealt with the subject of negotiations as distinguished from a contract itself, then he would have raised the same point in the trial court which he argues here as the important part of his second assigned error. We do not know and cannot say that the trial court would not have incorporated the point for which Matt now contends had Matt stated the point in his exception as he presents it to us.
This court has spoken on the present problem regarding exceptions. The court stated in Wilson v. Kouri, 255 Iowa 348, 352-353, 122 N.W.2d 300, 302:
The criterion is whether the exception taken alerted the trial court to the error which appellant is now urging. Appellant has gone one step beyond the exception taken to the instruction prior to its submission to the jury. The important part of the contention now urged by appellant was not mentioned in the exception. (Italics added.)
The court has also stated that “the complaining party must point out clearly to the trial court what he objects to in the instruction and why; and his rights on appeal will be measured thereby, and cannot be extended.” (Italics added.) Jurgens v. Davenport, R. I. & N. W. Ry., 249 Iowa 711, 718, 88 N.W.2d 797, 802. See also Andrews v. Struble, 178 N.W.2d 391, 399 (Iowa) (“It is incumbent on the objecting party to point out wherein he contends the instruction is wrong so the trial court may have opportunity to correct it.”).
Matt’s second assignment of error goes a step beyond the exception taken and should not be considered.
MOORE, C. J., and McCORMICK, }., join in this dissent.