Barrett v. Magner
| Decision Date | 17 July 1908 |
| Docket Number | 15,714 - (189) |
| Citation | 117 N.W. 245,105 Minn. 118 |
| Parties | JOHN D. BARRETT and Another v. B. J. MAGNER and Another |
| Court | Minnesota Supreme Court |
Action in the municipal court of Minneapolis to recover possession of certain personal property or $355, its value. Defendant Daniel J. Molan alone answered. The case was tried before Charles L. Smith, J., and a jury which rendered a verdict in favor of defendant. From an order denying their motion for a new trial, plaintiffs appealed. Reversed and new trial granted.
Evidence -- Conversation over Telephone.
A telephonic conversation is admissible in evidence, when, from all the circumstances, the identity of the party answering the telephone is established with reasonable certainty; and recognition of the voice, or identity by admission of one who answers that he is the person desired, is not necessarily required. A witness testified that he secured telephone connection with the place of business of a party, that some one answered and stated the one wanted was not in, but would be called, and that soon thereafter another voice answered and a conversation took place respecting a certain business transaction. Held, the evidence was admissible; the witness having also testified that the talk over the 'phone was of the same character as occurred a few days previous in a personal conversation between the same parties.
Chattel Mortgage -- Sufficiency of Description.
A chattel mortgage, duly executed and recorded, stated the place of residence of the mortgagor and contained the following description in part of the mortgaged property "One bay horse, 6 years old, weight 1,500; one bay horse, 6 years old, weighs 1,500, has white stripe on face; one black horse, 7 years old, weighs 1,500; one bay horse, 8 years old, weighs 1,500; one black horse, 9 years old, weighs 1,500; one dapple gray horse, 9 years old, weighs 1,500." The property was described as being in possession of the mortgagor, but the place of possession was not specially stated. Held, that it conclusively appeared from the face of the mortgage that the description was sufficient to enable a third party, aided by inquiries which the instrument suggested, to identify the property.
New Trial.
Where two or more distinct issues have been submitted to a jury, one erroneously, and a general verdict returned, a new trial must be granted, for the reason that it is impossible to determine upon what issue the verdict was based.
Simon Meyers, for appellants.
James E. O'Brien, for respondent Molan.
March 30, 1907, appellants sold to B. J. Magner, in consideration of $525, a team of horses and a set of harness. Magner paid $100 cash and executed a chattel mortgage upon the team and harness, and upon three other horses, two other sets of harness, and a wagon, as security for the deferred payments. The mortgage was duly filed in the office of the city clerk of Minneapolis April 2, 1907. The following May 22 respondent Molan purchased from Magner the team which had been sold to him by appellants, and this action was brought in replevin to recover possession of the team. Molan claimed to be an innocent purchaser, without notice of appellants' mortgage, and upon the issues presented recovered a verdict in the trial court.
1. Was it error to receive in evidence a certain telephonic conversation testified to by Molan as having taken place between himself and Moses Zimmerman, appellants' manager? One of the issues at the trial was that appellants had given Magner permission to sell the team, and that he had accordingly acted upon appellants' suggestion and sold the team to Molan, without conveying to him knowledge of the fact that the mortgage was in existence. Magner testified that after he had purchased the team from appellants, and before he knew anything about Molan, he had a personal conversation with Mr. Zimmerman, which took place on or about the tenth or twelfth of April, at which he told Mr. Zimmerman that one of the horses was balky; that he could not do anything with it so far as hauling heavy loads was concerned, and that he (Magner) wanted to get rid of the team; that appellants would have to take it back or let him sell it; that Zimmerman had replied: After this conversation Magner advertised the team for sale in the Minneapolis newspapers, and in response Molan appeared as a prospective purchaser. Before any deal was closed, Magner called up appellants on the telephone and asked to talk with Zimmerman, and his testimony on that point is as follows: I had occasion, prior to the month of May, 1907, to call up Barrett & Zimmerman at different times over the 'phone. * * * and received the reply that he was out, but that they would call him in; and I waited until they answered again, and some one else came to the 'phone, and I told him who I was, and I said, I have a chance to sell that team, and he said "Go ahead and sell them, if I wanted to." This testimony was objected to upon the ground that it was incompetent, that no proper foundation was laid, and that it was not shown that Mr. Zimmerman had any authority with reference to the matter under consideration.
Appellants make the point that it does not appear from the telephone conversation whether Magner referred to the team which he had bought, and which is involved in this action, or not; that the evidence is not sufficient to identify Zimmerman as the party at the other end of the telephone. In the case note to Planters v. Western Union (Ga.) 6 L.R.A. (N.S.) 1180, the authorities upon this subject have been collected and carefully analyzed, and the editor states as a general proposition: "When the admissibility of a telephonic communication depends upon its having been made with a particular individual, and not merely with a person connected with a certain office or place of business, it is clear that the identification of the office or place of business will not be sufficient to lay the foundation for the admission of the telephonic communication, unless under the circumstances of the particular case, the identification of the office amounts to a practical identification of the individual." For instance, in Rock Island v. Potter, 36 Ill.App. 590, the testimony of a witness that he inquired by telephone of the railroad telegraph office, where the consignees generally got their information, with reference to a certain shipment, and that some one answered giving him the information he sought, was held sufficient to show prima facie that the answer came from an agent of the railroad company, and to make it admissible against the railroad company. See also Kansas City v. Standard, 123 Mo.App. 13, 99 S.W. 765, and Guest v. Hannibal, 77 Mo.App. 258. A telephonic communication was held admissible against a carrier, without evidence of identity other than that plaintiff's agent called the central office over the wire, and asked to be put in communication with defendant's agent's office, and was told that he had been; that he then inquired if the person talking was the stated agent, and, being answered in the affirmative, gave instructions with reference to certain property. It was held that when one is connected by telephone wire with the place of business, or with one with whom he desires to converse, and is answered by some one assuming to be such a person, it will be presumed that he is such person.
However when the communication is of such a nature as to require identification of the individual, there must be evidence of such identity, in addition to the mere fact that the witness asked for a connection with his place of business, and that when the connection was made some one who claimed or assumed to be such person responded. This is illustrated by the case of Obermann v. Adams, 35 Ill.App. 540. It was there held error for the court to admit the testimony of the plaintiff to the effect that he called up the brewery over the 'phone, and that the individual at the other end of the wire assured him that the party inquired about had authority to purchase goods on credit; the witness having admitted that he did not recognize the voice of the individual who spoke with him through the 'phone, as he never knew any of the people connected with the brewery company. So in Swing v. Walker, 27 Pa. S.Ct. 366, it was held that an admission claimed to have been made by one of the defendants over the telephone was properly excluded,...
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