Conrad v. Dobmeier

• Decision Date: 29 April 1896
• Citation: 67 N.W. 5,64 Minn. 284
• Parties: CONRAD v DOBMEIER.
• Court: Minnesota Supreme Court

64 Minn. 284

67 N.W. 5

CONRADvDOBMEIER.

Supreme Court of Minnesota.

April 29, 1896.

(Syllabus by the Court.)

Certain errors alleged to have occurred upon the trial of this cause, which was brought to recover damages for a breach of contract, considered and disposed of.

Appeal from district court, Crow Wing county; G. W. Holland, Judge.

Action by William S. Conrad against Jacob Dobmeier. There was a verdict for plaintiff, and from an order denying a new trial defendant appeals. Affirmed.

True & Price, Bangs & Fiske, and E. M. Card, for appellant.

W. S. McClenahan and W. H. Mantor, for respondent.

COLLINS, J.

The facts in this case sufficiently appear in the opinion filed on a former appeal. 57 Minn. 147, 58 N. W. 870. Subsequently the cause was brought on for a second trial, and, under instructions from the court, plaintiff obtained a verdict for substantial damages. The present appeal is from an order denying defendant's motion for a new trial. Several of the assignments of error go to rulings of the court whereby plaintiff's counsel were allowed to introduce the written contract in evidence, the claim being that there was an entire failure to show its execution and delivery. A purported copy of the contract, from which it appeared that it was executed under seal by both parties in the presence of witnesses, and that each, but separately, had acknowledged its execution before notaries public, was made a part of the complaint. The alleged execution and delivery were not denied in express terms in the answer, but the gist of that pleading was an effort to set up that such execution and delivery were obtained from defendant by means of false and fraudulent representations made by plaintiff. If this answer did not expressly admit the execution and delivery alleged in the complaint, it certainly did by implication. But the contract was acknowledged in the manner provided by law for the taking of proof or acknowledgment of conveyances of real estate, and the certificates of the notaries were indorsed thereon in due form. It was admissible in evidence under the provisions of Gen. St. 1894, § 5727. Again, there was ample extrinsic testimony as to its execution; for the plaintiff stated, as a witness, that he executed it, and he also identified defendant's signature, while the notary who took the latter's acknowledgment was also examined upon this point, and through him the execution by both parties was fully shown.

It is urged that the court erred in permitting the plaintiff to testify as to what the property would have been worth, had defendant performed his part of the contract; that is, had he improved it as agreed upon. The objection to the question which called for this estimate as to value was-First, that the witness had not shown himself competent to testify on this point; and, second, that there was no evidence before the court of the execution and delivery of the contract. The...