Bond v. Corbett

• Decision Date: 01 January 1858
• Citation: 2 Minn. 248
• Parties: JOHN W. BOND vs. HARRIET B. CORBETT.
• Court: Minnesota Supreme Court

2 Minn. 248

JOHN W. BONDvs.HARRIET B. CORBETT.

Supreme Court of Minnesota.

Error to district court, Ramsey county.

The defendant here was plaintiff below, and sued this plaintiff (defendant below), alleging in her complaint as causes of action —

A loan by her to defendant of $569.55.

Moneys due her from other parties to the amount of $1,440.50, and collected by defendant for her, and not paid over.

The rent of household furniture, to the amount of $30.

Work and labor of plaintiff, worth $40.

And board of defendant, $40, of which only $20 had been paid.

The answer denied the loan of the $569.55, or any sum.

Admitted the collection by defendant for plaintiff of $1,440, but alleged that, at the instance of plaintiff, he paid out for her $1,429.48.

Admits that he used the household furniture, but denies that he was to pay for it.

Admits services of plaintiff, but alleges that they were rendered under a special contract, by which he was to give her the use of a room and board for herself and two daughters, and that he furnished the room and board according to agreement.

Admits the board furnished him, but alleges, as a counter-claim, his services rendered her, to amount of $425.

The reply denies the payment by defendant, of the $1,429.48, or any sum.

Admits the special contract with reference to plaintiff's services, and use of room and board; but alleges that defendant disregarded it, and, for one month of the time, did not furnish the room.

Alleges that the services of defendant, alleged in answer, were gratuitously rendered, and that they were of no value.

The cause was tried by a jury, and a verdict rendered for plaintiff for $2,808.11.

On the trial the plaintiff was allowed, against the defendant's objection, to prove what the use of the room mentioned in the special contract was worth, during the time it was not furnished her according to the contract.

The plaintiff testified to loaning the defendant $569.55; and, on cross-examination, defendant's counsel asked her, Where did you obtain the money? Which plaintiff's counsel objected to, as irrelevant and immaterial.

The competency of the question was argued on both sides, upon a theory previously suggested by defendant's counsel, that the money belonged to the estate of plaintiff's deceased husband, of which she was administratrix, and that she loaned it as administratrix; plaintiff's counsel insisting that it was incompetent in that view, and defendant's counsel insisting that it was competent — no other ground of competency, or incompetency, being suggested. The court sustained the objection.

The defendant, having been sworn in his own behalf, was asked by his counsel, "State whether or not, in May, 1854, or at any other time, you received the sum of $569.55, or any other sum, from plaintiff; and, if so, state the facts in relation to its receipt?" On objection by plaintiff, the court decided that the first part of the question was admissible, but the last clause of it inadmissible, so far as it seeks to elicit any special defense not set up in the pleadings.

The defendant then offered to show that the loan was made to him by plaintiff as administratrix of her husband's estate, which proof was objected to and excluded.

The points for plaintiff in error are not on file.

Points and authorities for defendant in error:

1.That the evidence proposed and offered by the defendant's counsel upon the trial, to prove that the sum of $569.55, first mentioned in the complaint, was money belonging to the estate of Wm. F. Corbett, deceased, at the time of his decease, and that it was in the hands of Wm. R. Marshall, of St. Paul; that the plaintiff was administratrix of the estate of said Corbett, and, in her representative capacity of administratrix, authorized the defendant to receive said sum of Marshall; that he did so receive it of the estate, and was to account to the estate therefor, and not to the plaintiff, was properly and legally refused and excluded by the court, upon the grounds and for the reasons stated in the bill of exceptions.Van Santvoord's Pl. (2d Ed.) 406, 407;Houghton v. Townsend,8 How. Pr. R. 441;Stoddard v. O. A. Conference,12 Barb. 573;Fay v. Grimsteed,10 Barb. 328, 329;Gihon v. Levy, 2 Duer, 176;Minn. Stat. 333-8, §§ 66-67;Baker v. Bailey,16 Barb. 57-58;Walrod v. Bennett,6 Barb. 144.

2.Executors and administrators may and should sue in their own names for money belonging to the estate, loaned by them, or any cause of action accruing after the decease of the intestate as such executors or administrators.Rev. Stat. 333, § 29;Bright v. Currie, 5 Sandf. 433; the points made by Bosworth, J., and authorities cited by him in same case, 437;Merritt v. Seaman,6 N. Y. 168;Mowry v. Adams,14 Mass. 327.

3.When it is clear that if the rejected evidence had been admitted, it could not have changed the result, a new trial will not be granted.2 Graham & W. on New Trials, 671.

4.When evidence is offered for a specific purpose, and it is inadmissible for that purpose, but is admissible for another purpose not alluded to at the trial, the rejection of such evidence is not ground for a new trial.2 Graham & W. on New Trials, 669;3 Phil. on Ev. 790;7 Curtis, S. C. 601;13 Conn. 361;1 N. Y. 83.

5.It is not error for a court to refuse to instruct the jury upon points not at issue by the pleadings in the case.The instruction which the counsel for the plaintiff in error asked the court below to give the jury, was not upon the issue made by the pleadings, and was not applicable to the evidence in the cause, and if such instructions had been given, they would have been irrelevant and erroneous, and the same were properly refused.Drake v. Curtis,1 Cush. 395;Patterson v. Same,8 Blackf. 237;Commonwealth v. Shaw,4 Cush. 593;State v. Hall, 39 Maine, 107;New Brunswick Co. v. Tiers,4 Zab. 697;Lyon v. Marshall,11 Barb. 241;Shorter v. People,2 N. Y. 193;Gardner v. Clark,17 Barb. 549;French v. Millard,2 Ohio St. 45.

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Brisbin & Bigelow, for plaintiff in error.

John B. Sanborn and M. E. Ames, for defendant in error.

FLANDRAU, J.

The complaint contains a count for work and labor alleged to have been done and performed by the plaintiff for the defendant, to the value of forty dollars.This count is on a quantum meruit.The answer admits the labor, denies the time of commencement, and avers that it was performed under a special contract, by which the defendant was to pay for it in furnishing the plaintiff a room in his house, and boarding her and her two children, and alleges performance.The reply admits the special agreement, but avers that the defendant did not furnish the room until after the plaintiff had worked for him one month.The proof made by the plaintiff is, that she began to work for the defendant on the 15th or 18th of November, 1854, and continued to work for him until May 1st, 1855, and that she worked for him all the time under a special contract, which she states, in substance, to be as alleged in the answer; and alleges that she worked over one month before defendant would let her have the room, and that she derived no benefit, use, or rent from it during this period.The plaintiff offered to prove what the room was worth during the month that she was deprived of it while working under the contract, which was objected to by defendant's counsel, but the court allowed the evidence.

The contract stood admitted on the pleadings, and the plaintiff had sworn that she performed the work under it.The plaintiff undoubtedly had the right to refuse to proceed under the contract, when the defendant refused to furnish her the room; she might have rescinded the contract, but she could not go on under the contract and perform on her part, and accept the performance on the part of the defendant as far as he did fulfill, and then claim the right to rescind and recover on a quantum meruit.She was bound to do one thing or the other at the outset; she elected to stand by the contract and fulfill on her part, and accept the partial performance of the defendant; if she has a cause of action against the defendant for her labor, and the partial failure by the defendant, it must be on the contract and for the breach by the defendant.Where a special agreement remains in full force, the plaintiff cannot resort to the general counts.Raymond v. Beannard,12 Johns. 274;Tuttle v. Mayo,7 Johns. 132, note "a" at end of case;Wilt v. Ogden,13 Johns. 56;Jennings v. Camp,13 Johns. 94;Pierce v. Drake,15 Johns. 475;Champlin v. Butler,18 Johns. 169;Wood v. Edwards,19 Johns. 205;Jewell v. Schroeppel,4 Cow. 564; Chitty on Con. 636, 539;Colville v. Besly,2 Denio, 139.

The court charged the jury on this branch of the case, that the burden of proof as to the special contract was on the defendant; that, if it was not made out they should allow the plaintiff what, from the whole testimony, was proved to be the fair value of the services.This was excepted to by the defendant.The contract being admitted by the pleadings, and the plaintiff herself having sworn that she performed the labor under it, and that the defendant had performed all but providing the room stipulated for, the court should have charged that the contract needed no proof, and being partly performed and unrescinded, was in full force, and that the plaintiff could not recover under a common count for work and labor, but must sue upon the contract for damages.Permitting proof of the value of the room, and the charge to the jury on this head, were both error.

The complaint contained a count for $569.55 loaned to the defendant by the plaintiff, which was denied by the answer.The plaintiff testified to loaning the money to defendant, and on her cross-examination, the defendant asked her the following question: "Where did you obtain this money?"The plaintiff objected to it, on the ground that...