(186 N.W.) the purpose for which they were used in evi-15. Evidence 397 (2)-Written contract predence. Roberts v. Ozias, 179 Iowa, 1141, 162 sumed to contain entire agreement. N. W. 584; Banning v. Marleau, 121 Cal. 240, 53 Pac. 692. [5] The evidence of an expert who had examined the books of the milling company and testified as to their contents and the facts as disclosed therein, regarding the financial condition of said company, was also admissible in evidence. IV. Objection is urged to 10 instructions given by the court. We have examined all of these instructions with care, and also the objections lodged against each of them. We find no error therein of which the appellant can justly make complaint. The instructions as a whole fairly presented the case to the jury. We find no error in any of the instructions which, when the charge is read as a whole, require reversal on our part. The case seems to have been fairly submitted to the jury, and the verdict has support in the evidence. Finding no error requiring reversal, the judgment of the lower court is affirmed. A written contract is presumed to contain the entire agreement between the parties. 6. Sales 38(1)—Principals' promise to furnish experienced salesman held not fraudulent representation. A seller's promise to furnish an experienced salesman to go with its agent, who purchased the use thereof, held merely a false promise, its goods for resale, to sell and demonstrate failure to carry out which does not of itself constitute fraud. 7. Sales 181 (11)—Evidence held not to show failure to deliver. In an action on a note for the price of goods sold, evidence held not to show failure of consideration by failure to deliver. 8. Appeal and error 169, 171(1)—New issue cannot be tendered on appeal, and trial finding, correct on theory pursued by parties, must stand. An issue cannot be tendered in the first instance on appeal, and, the cause having proceeded to trial on the theory presented by the STEVENS, C. J., and EVANS and AR- issues as made by the parties, the trial court's THUR, JJ., concur. SECURITY SAV. BANK v. CAPP et al. (No. 34303.) (Supreme Court of Iowa. March 7, 1922.) 1. Bills and notes 155-Note reciting waiver of demand and agreement for extension not negotiable. A note, containing waiver of demand notice and protest and an agreement for extension without notice, is not negotiable. 2. Appeal and error 1061 (4)-Direction of verdict for plaintiff held error without prejudice. Where plaintiff assumed a burden of proof greater than required under Code, § 3639, but had made out a prima facie case which was not met by defendant, direction of verdict for plaintiff was error without prejudice. 3. Bills and notes finding, if correct on that theory, must stand. Appeal from District Court, Dallas County; J. H. Applegate, Judge. Action to recover on a promissory note executed and delivered by the defendant Capp to the defendant Perry Stock Remedy Company, and sold and transferred by said company in blank to the plaintiff. The trial court directed a verdict in favor of the plaintiff at the close of all the testimony, and entered judgment against defendant Capp, who appeals. Affirmed. Harry Wifvat, of Perry, and E. W. Dingwell, of Adel, for appellant. S. Trevarthen, of Perry. for appellee. DE GRAFF, J. Plaintiff as indorsee sucs to recover from the maker and the payee indorser on a promissory note in words and figures as follows: "Perry, Iowa, April 29, 1920. "Demand after date, for value received we 524-Production of note jointly and severally as principals promise to makes prima facie case. Possession of a note by payee is sufficient evidence of title to make a prima facie case, and this rule applies if the note is payable to bearer, or, if payable to order, is indorsed in blank. 4. Bills and notes 315-Indorsee of nonnegotiable note takes subject to maker's defenses. An indorsee of a nonnegotiable note takes it subject to all equities and defenses of the maker against the payee indorser. pay to the order of Perry Stock Remedy Company, at Security Savings Bank, Perry, Iowa, four thousand dollars, with interest at the rate of 8 per cent. per annum from date, payable semiannually. Any default in the payment of principal or interest shall cause the whole amount to become due and payable at once, and any defaulted principal or interest shall draw interest at the rate of 8 per cent. per annum. Upon default in payment we agree to pay attorney's fees and collection expenses. Makers, indorsers, and guarantors waive demand for payment, notice of nonpayment, notice of protest hereof and agree to extension of For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes time on this note without notice and any jus-, tiff moved the court to direct a verdict in its tice of the peace may have jurisdiction hereon favor for the following reasons: to the amount of $300. P. O., Bouton, Ia. "Matt Capp." "(1) That there is no evidence in this case that the plaintiff bank was ever a party to any misrepresentations of any kind, or that they had knowledge of any defects, in the pur chase of said note. "(2) That there is no evidence sufficient to go to the jury such that any reasonable man could return a verdict in favor of the defendant Capp, as against the plaintiff herein. "(3) That the defendant admits that he has in by virtue of any transaction in connection with the purchase of said note. This is a renewal note, and was executed and delivered by Capp in lieu of a $4,000 note bearing date November 25, 1919, which was canceled and surrendered upon the execution of the new note. Simultaneously with the execution of the original note the following unilateral contract was signed: "We, the Perry Stock Remedy Manufactur-absolutely no claim against the plaintiff hereing Company of Perry, Iowa, have this day and date, November 25-19, sold to Matt Capp fifty thousand pounds of remedy for mail orders and all goods sold in Polk county to be turned over to Matt Capp, all goods to be shipped as ordered by said agent. This car of remedy sold at eight cents per pound, wholesale price. C. B. Boyer, Territory in Dallas county from road east of Schnoor farm he gets from there north, south, east, and west." [1] The note in suit is not a negotiable instrument. Quinn v. Bane, 182 Iowa, 843, 164 N. W. 788. It appears, however, that plaintiff in its amended and substituted petition predicates a cause of action on the theory that the note is negotiable. One paragraph of the petition reads: "That on the 25th day of November, 1919, the Perry Stock Remedy Company by C. B. Boyer, transferred, sold, and assigned said note to the plaintiff herein for good and valuable consideration and indorsed the same in blank on the back thereof. That the plaintiff is a bona fide purchaser of said note and a holder in good faith before maturity thereof." Defendant Capp in his answer alleges fraud in the inception of the note, and by plea of general denial states: "(4) That defendant admits executing the contracts, more particularly Exhibit 1, which is a written contract for the absolute sale of the amount of merchandise covered by said note, and that Exhibit G is a renewal of said note in this cause; and that the defendant admits that he never demanded all, or part, of the said goods from the Perry Stock Remedy Company, and that there is no evidence that the plaintiff bank was ever a party to the contract existing between the parties in this cause." This motion was sustained generally. [2, 3] A plaintiff is not compelled to prove more than is necessary to entitle him to the relief asked for, and a defendant not more than sufficient to sustain his defense. Code, § 3639; Lee v. Coon Rapids Nat. Bk., 166 Iowa, 242, 144 N. W. 630. The plaintiff herein assumed a burden of proof greater than required. Possession of a promissory note by the payee is sufficient evidence of title to make a prima facie case. Tullis v. McClary, 128 Iowa, 493, 104 N. W. 505. The same rule applies if the instrument is payable to bearer, or, if payable to order, is indorsed in blank. American Ex. Co. v. People's SavTherefore the error assigned by appellant is error without prejudice. "That he denies that the plaintiff is a hold-ings Bank, 181 N. W. 701. er in due course without notice of the note sued upon, and that at the time he purchased said note was fully advised as to the conditions surrounding said note and the making thereof." Plaintiff departed somewhat from the usual manner and method in the statement of cause of action in a case of this character, and consequently the logical order in the presentation of evidence was not followed. Plaintiff undoubtedly viewed this note at the time the action was instituted as a negotiable instrument, but this did not make it So. The defendant denied that the plaintiff bank was a holder in due course, but the reason assigned therefor was not that the note itself was not negotiable in form, and therefore could not possess negotiability, but that the bank was acquainted and advised of the fraud in the inception of said note, and took same with notice of defects. These issues having been joined in the manner indicated, the cause proceeded to trial; plaintiff assuming the burden of proof in the first instance. [4-6] We will not presume that the learned trial judge construed the note in suit as a negotiable instrument. The bank was a mere assignee or transferee, and any defense which the maker might interpose as against the enforcement of this obligation by the payee was available to him as against the assignee bank. The plaintiff took said note subject to all equities and defenses. This being true, did the defendant establish the fraud pleaded? The contract, Exhibit 1, was in writing, and it is presumed to contain the entire agreement between the parties hereto. Rath v. Schoon, 182 N. W. 190. Defendant Capp in his answer alleges: "That his signature to said note was obtained by fraud and fraudulent misrepresentation of the payee, the Perry Stock Remedy Company and its owner, C. B. Boyer; that said note was given pursuant to an oral contract of the purchase of 50,000 pounds of stock food, and of an agency to sell the same in the county of Polk and state of Iowa, and the representation (186 N.W.) and C. B. Boyer would furnish to this defend-ing sustaining defendant's motion is final as ant one Temple, an experienced salesman, to go to him, supporting an appeal, though no formal with and sell and demonstrate the use of said judgment of acquittal was entered. stock remedy." [7] This was merely a false promise in futuro, and not sufficient to predicate fraud. That he "would furnish" a salesman is not a material past or existing fact, nor is it coupled with any such fact. It is a collateral matter, and it is not shown that such a promise, if made, was made with a secret intention of nonperformance. City Deposit Bank v. Green, 138 Iowa, 156, 115 N. W. 893. The mere failure to carry out a promise in futuro does not per se constitute fraud. City National Bank v. Mason, 186 N. W. 30. No other fraud specification is established by the evidence, but it is contended that the stock food agreed to be delivered under the contract and for which the note was given was never delivered, and consequently there was a failure of consideration. Defendant testified: "Boyer never told me whether he had the stuff or did not have it. He never showed it to me. He never offered it to me." He further testified: "I don't think that I ever denied my liability on that note as far as the bank is concerned before suit was brought. At the time I executed the [renewal] note, I offered to sell the goods back to Boyer. He told me he did not want them. He told me he did not want the stock." Clearly there was an intention to deliver. [8] It is the rule of this court that an issue cannot be tendered in the first instance on appeal. Furthermore, the issues in this case having been framed by the parties thereto and the cause having proceeded to trial on the theory presented by the issues thus made, the finding of the trial court must stand. The ruling of the trial court is correct on either theory. The evidence does not support the plea of fraud, and, the bona fides of the purchaser not being involved, it follows that no fact question arises in this particular. The judgment entered is affirmed. 2. Criminal law 1024 (12)—No appeal from judgment for costs against state in criminal case. No appeal will lie from a judgment against the state for costs in a criminal case, unless some matter in reference thereto has been passed on by the trial court. 3. Criminal law 1144 (5)-Presumption is in favor of appellate court's jurisdiction. Under Code Supp. 1913, § 4139, requiring that an objection to the Supreme Court's juetc., the presumption is in favor of the jurisdiction of an appeal be made in printed form, risdiction, and mere paucity of the recitals in the abstract are immaterial, in criminal as well as civil cases, in view of Comp. Code, § 9571. 4. Criminal law 1165(1)-Denial of motion to submit case as of date on which appellant's argument should have been filed held not prejudicial. Where an appeal by the state was set to be heard on October 20, but was not heard and submitted until the following February, when the case was fully argued by both parties, the court's denial of defendant's motion to submit the case as of September 20, when appellant's argument should have been filed, was not prejudicial to defendant, who was acquitted, though such argument was not served on him until October 10. 5. Criminal law 1132-Court will not refuse hearing because arguments not filed in time, where no prejudice appears. Whether an argument will be considered, though not filed in time, is within the discretion of the Supreme Court which ordinarily will not refuse to permit a hearing where no prejudice appears. 6. Corporations 324-Falsity of items in corporate statement held admissible, though not pleaded, to prove falsity of item pleaded. In a prosecution under Code Supp. 1913, § 1641-g, for publishing a false financial statement as to the amount of cash held by a corporation in banks and the low cost of selling stock, evidence as to the falsity of other items of resources than that of cash in banks, the falsity of which was not proved, held admissible, though not pleaded, as bearing on the the sale of stock. STEVENS, C. J., and WEAVER and PRES- falsity of the statement as to the low cost of TON, JJ., concur. STATE v. McDOUGAL. (No. 33974.) (Supreme Court of Iowa. March 7, 1922.) 1. Criminal law 1023 (2)-Ruling sustaining directed verdict of acquittal is final though no formal judgment entered. Under Comp. Code, § 9518, requiring that the court render judgment of acquittal immediately on return of a directed verdict, its rul 7. Indictment and information 65 Only such facts need be stated in indictment as must be proved on trial. Only such facts need be stated in the indictment as are required to be proved on the trial, and it is not necessary to plead all the evidence. 8. Criminal law 338(1)-Logically relevant facts are admissible; "relevancy." Whatever facts are logically relevant are legally admissible, an offer to prove a fact involving an assertion that such a relation exists logically between it and the fact in issue, that the existence of the former renders more prob For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes able or improbable the existence of the latter, these small matters in 500 or 600 cases a which relation is termed "relevancy." [Ed. Note. For other definitions. see Words and Phrases, First and Second Series, Relevant.] 9. Corporations 324-False statement as to cost of selling stock conspicuously printed on corporate statement, held part thereof and material. year, which are argued at some length, sometimes make unnecessary labor for the court and counsel as well. The court had authority to rule on defendant's motion. The ruling ended the case, so far as the defendant is concerned, even though no formal judgment of acquittal was entered. We assume defendant would not contend otherwise. [2] The only other judgment which could have been rendered would have been against the state for costs. We suppose no execution could issue against the state to make such a A statement as to the cost of selling stock, printed in red ink and larger type in a corporate financial statement, is a part thereof and material, under Code Supp. 1913, § 1641-5, penalizing false statements by corporate officers intended to affect the market value of corpo-judgment. We do not understand that costs rate shares. 10. Criminal law 1189-Cause reversed on state's appeal not remanded where defendant was acquitted. Where defendant was acquitted, a cause reversed on the state's appeal, because of erroneous exclusion of evidence, will not be remanded for new trial. in criminal cases are paid in that method. It has been held that costs, in one sense, are not a part of the judgment, and no appeal would lie from such a judgment, unless some matter in reference thereto has been passed upon by the trial court. Fisher v. Railway, 104 Iowa, 588, 590, 73 N. W. 1070; Young v. Rutherford, 176 N. W. 241, 242. We have held that the ruling on a motion to direct Appeal from District Court, Polk County; a verdict is appealable, and in some cases, Lester L. Thompson, Judge. The trial court excluded certain evidence fendant's motion to direct a verdict of acquittal. The state appeals. Reversed. if necessary, the appeal will be considered as taken from an order directing a verdict, offered by the state, and then sustained de- where the record fails to show that any judgment was rendered. Clark v. Van Loon, 108 Iowa, 250, 79 N. W. 88, 75 Am. St. Rep. 219; Gibson v. Iowa Legion of Honor, 178 Iowa, 1156, 1179, 159 N. W. 639. The notice of appeal in the instant case recites that "notice of appeal was duly given in the man Ben J. Gibson, Atty. Gen., B. J. Powers, Asst. Atty. Gen., and A. G. Rippey, of Des Moines, for the State. Chas. S. Bradshaw and Casper Schenk, ner, and within the time specified by statboth of Des Moines, for appellee. ute, and service made and return thereof filed, as provided by law." It does not recite whether the appeal is from a final judgment or the ruling on the motion for verdict. No complaint is made as to the form of the statement in the abstract in this matter. [3] But aside from all these matters, the statute (section 4139, Supplement 1913) provides that all objections to the jurisdiction of the court to entertain an appeal must be made in printed form, stating specifically the ground thereof, and served upon the appellant, or his attorney of record, not less than 10 days before the date assigned for the submission of the case. We do not understand appellee to claim that this provision of the statute was complied with. The rules of procedure in civil cases are applicable to appeals in criminal cases, at least so far as applicable. Compiled Code, § 9571. We have held, under section 4139, that the PRESTON, J. [1] 1. At the outset appellee raises the question that this court has no jurisdiction to entertain the appeal for the reason that no final judgment was entered against the state. The record does not show a final judgment against the state for costs. But, as said, the court sustained defendant's motion for a directed verdict of acquittal, and directed the jury to return such a verdict, and such verdict was signed and returned to the court, as directed. This was final as to the defendant. The statute (section 9518, Compiled Code) provides that under such circumstances the court must render judgment of acquittal immediately. There was nothing else for the court to do, upon sustaining the motion, but to enter judgment or direct it to be done. It may be that we should indulge the presumption that the trial court did its duty. Under the stat-presumption is in favor of the jurisdiction, ute cited later in the opinion, we think there is such a presumption. It would have been a simple matter to have entered judgment. On the other hand, it would have been a simple matter for appellant to state the fact in the abstract, if it is a fact, that the judgment was entered, or perhaps to have asked the court to enter the judgment if it was not done. No criticism is intended, and yet unless appellee specifically demonstrates that the court is without jurisdiction, and in the manner pointed out by the statute; that mere paucity of the recitals in the abstract are no longer of consequence; that in the absence of objections, and in the manner pointed out by the statute, we indulge the presumption that the record presents nothing but that which we have power to review. (186 N.W.) Sawyer v. Assoc., 177 Iowa, 218, 158 N. W. 679; Franke v. Kelsheimer, 180 Iowa, 251, 262, 163 N. W. 239. We think appellee's objection as to this feature of the case is not well taken. [4] 2. Appellee further contends that appellant's argument should have been filed September 20, 1921. There was a delay of a few days, and it was not served upon appellee until October 10. Appellee filed a motion to affirm, or, rather, that the case should be submitted as of the date of appellant's default, and the question is now presented in the briefs. Appellee states that it had the option to On October 22, 1919, the defendant was treasurer and a director in the now defunct Associated Packing Company, being liquidated under a receiver. At that time one Frisbe was president, and B. F. Cheshire was ac The evidence countant of that company. was such as that it could be found that defendant knowingly concurred in making and have the case submitted upon the record then publishing a statement of the affairs and peon file, but concedes that such option is sub-cuniary condition of the packing company, ject to the discretion of the trial court. It as of the date last given. Such statement is claimed by appellee that the appeal was was sent out and given to different persons. regularly set to be heard on October 20, 1921, The substance of the statement is as follows: but it was not heard and submitted until Financial Statement of the Associated Packing February, 1922, and the case is fully argued Company, as of the Year Ending by both parties. This being so, and defendOctober 22, 1919. ant having been acquitted, we are unable to see that any prejudice has resulted to him. The abstract does not show the reason for the postponement to February. With so many cases before the court, it would, of course, be the better practice, and cause less confusion, if the rules were observed, and filings made in accordance therewith. [5] We realize that this is not always practicable. However, it is a matter within the discretion of the court whether arguments will be considered, even though not filed in time. Ordinarily we do not refuse to permit a hearing where no prejudice appears. Buehner v. Creamery Co., 124 Iowa, 445, 100 N. W. 345, 104 Am. St. Rep. 354; Baker v. Oughton, 130 Iowa, 35, 106 N. W. 272; Wood v. Hall, 138 Iowa, 308, 110 N. W. 270; Moore v. Crandall, 146 Iowa, 25, 124 N. W. 812, 140 Am. St. Rep. 276; Flickinger v. Insurance Co., 136 Iowa, 258, 113 N. W. 824. [6] 3. Coming now to the merits of the appeal: The errors complained of relate to the rulings of the trial court excluding certain evidence, offered by the state. The defendant was indicted under section 1641-g, Code Supplement 1913, relating to false statements by corporate officers intended to affect the market value of corporate shares, which provides: Cash in hand... Resources. ..... 7,032 65 77,862 43 2,477,628 40 165,000 00 Real estate, water and ice supply 535,000 00 And other miscellaneous named 50,000 00 75,000 00 45,000 00 .$3,489,946 43 144,041 05 $3,633,987 48 The indictment charges, in substance, that defendant, being then and there an officer and agent of said packing company, a corporation, etc., did then and there, knowingly and feloniously, concur in making and publishing a written statement of the affairs and pecuniary condition of said Associated Packing Company, with the intent to produce, and give to the shares of stock of such corporation, a greater value than they really possessed; that defendant did, knowingly and feloniously, concur in making and publishing a financial statement of said packing "Every director, officer, or agent of any corporation or joint-stock association, who knowingly concurs in making, publishing, or posting, either generally or privately, to the stockholders or other persons, any written report, exhibit, or statement of its affairs, or pecuniary condition, or book, or notice containing any material statement which is false, or any untrue or wilfully or fraudulently exaggerated report, prospectus, account, statement of opera- company as of the year ending October 22, tions, values, business, profits, expenditures, 1919 (same as before set out); and that said or prospects, or any other paper or document | defendant therein did, knowingly, falsely |