Caldwell Milling & Elevator Co. v. L. L. May Co.

• Decision Date: 20 December 1918
• Docket Number: No. 21017.,21017.
• Citation: 141 Minn. 255,169 N.W. 797
• Court: Minnesota Supreme Court
• Parties: CALDWELL MILLING & ELEVATOR CO. v. L. L. MAY CO.

141 Minn. 255

169 N.W. 797

CALDWELL MILLING & ELEVATOR CO.

v.L. L. MAY CO.

No. 21017.

Supreme Court of Minnesota.

Dec. 20, 1918.

Appeal from District Court, Ramsey County; James C. Michael, Judge.

Action by the Caldwell Milling & Elevator Company against the L. L. May Company. The court found for plaintiff, and defendant appeals. Affirmed.

Syllabus by the Court

The president of a mercantile corporation is presumptively a director and a stockholder, and a person interested in the event of an action against the corporation, and under Gen. St. 1913, § 8378, he is presumptively incompetent to give evidence concerning a conversation with a deceased person relative to a matter at issue in the action.

The opposing party does not waive the provisions of this statute by introducing the testimony of a competent witness as to such a conversation. O'Brien, Young, Stone & Horn, of St. Paul, for appellant.

E. P. Sanborn, of St. Paul, for respondent.

HALLAM, J.

[1] 1. Action to recover the agreed price of a quantity of onion seed. The defense was breach of warranty. The court found for plaintiff. Defendant appeals. The sale was verbal. D. M. Hamilton, plaintiff's traveling salesman, conducted the negotiation for plaintiff and L. L. May, then president of defendant company, but since deceased, conducted the negotiation for defendant. Hamilton testified that the agreement was that the seed was sold by sample subject to the right of defendant to test the sample before shipment, and that a true sample was furnished and tested and accepted. The defense alleged and relied upon was that the parties agreed upon a warranty that at least 95 per cent. of the seed furnished would grow, and that in fact less than 50 per cent. of it did grow.

Defendant called L. L. May, Jr., who at the time of the trial was president of defendant company, and offered to prove by him that he heard the conversation between L. L. May and Hamilton and that there was in fact a warranty agreed upon as alleged in the answer. The court excluded this testimony as incompetent under G. S. 1913, § 8378, which provides:

‘It shall not be competent for any party to an action, or any person interested in the event thereof, to give evidence therein of or concerning any conversation with * * * a deceased * * * party or person relative to any matter at issue between the parties, unless the testimony of such deceased * * * person concerning such conversation * * * given before his death * * * has been preserved, and can be produced in evidence by the opposite party, and then only in respect to the conversation or admission to which such testimony relates.’

The propriety of this ruling is the one question on this appeal.

Upon the evidence in the case the court properly held that L. L. May, Jr., was interested in the event of the action. He was the president of defendant, a mercantile corporation. The law requires the president of such a corporation to be a director (G. S. 1913, § 6172), and requires a director to be a stockholder (section 6171). It is presumed that this corporation was doing business in obedience of these laws and that accordingly the witness was a stockholder in defendant corporation. There is no evidence to the contrary. A stockholder of a corporation is a person interested in the event of an action against the corporation. Peterson v. Merchants' Elevator Co., 111 Minn. 105, 109, 126 N. W. 534,27 L. R. A. (N. S.) 816, 137 Am. St. Rep. 537. L. L. May, Jr., was...