Cummings v. Baars

• Decision Date: 31 January 1887
• Citation: 31 N.W. 449,36 Minn. 350
• Parties: Alexander D. Cummings v. John F. Baars, Jr
• Court: Minnesota Supreme Court

31 N.W. 449

36 Minn. 350

Alexander D. Cummings v. John F. Baars, Jr

Supreme Court of Minnesota

January 31, 1887

Appeal by defendant from an order of the district court for St Louis county, Stearns, J., presiding, refusing a new trial after verdict of $ 2,588.79, for plaintiff.

Order affirmed.

Ensign & Cash and White & Reynolds, for appellant.

S. L Smith, for respondent.

OPINION

Mitchell, J.

This action was brought to recover certain commissions for examining and entering certain pine lands, and for services performed in superintending the cutting and driving of logs. The defendant pleaded, among other things, a settlement upon which he paid plaintiff $ 2,517.52, which the latter agreed in writing to accept in full of all demands. Plaintiff, in reply, admitted signing a receipt in full, but alleged that defendant procured his signature thereto by fraud and misrepresentation. The evidence showed that in the autumn of 1881 the parties made a contract, by which the plaintiff was to look up, estimate, locate, and purchase for defendant pine lands on the Nemadji river, for which services he was to receive, as commissions or compensation, whatever the stumpage cost less than one dollar per 1,000 feet; that in pursuance of this agreement, plaintiff did look up, locate, and enter for defendant quite an amount of pine land. The evidence also shows that he looked up and examined certain pine lands in the same locality belonging to the St. Paul & Duluth Railroad Company, (and called "Railroad Lands,") and furnished defendant estimates and reports of the same, on the strength of which defendant himself bought the lands of the railroad company in St. Paul.

Upon a settlement had between the parties November 17, 1882, a statement of account (Exhibit A) was drawn up, in which certain lands thus looked up by plaintiff for defendant were described, and opposite each tract was set down the estimated amount of pine on it, and the cost of the land, and the amount of plaintiff's commissions on the basis of the contract already referred to, the aggregate of which, after deducting certain payments, (and $ 650 for certain land turned over to plaintiff with which to pay a claim of Paine & Co. for trespass on their lands by him while superintending the cutting of logs,) amounted to $ 2,517.52.

Attached to and following this statement was the following written instrument:

"Settled as above this seventeenth day of November, 1882, at Duluth, Minn., amount which is in full payment of all demands of whatever kind and nature to this date, including the claim of trespass of Paine & Co., of N. P. Junction, which I hereby agree to settle, and hold J. F. Baars, Jr., harmless on account of the same.

"A. D. Cummings."

The so-called "railroad lands" were not included in this statement, and consequently no commissions therefor were included in this sum of $ 2,517.52. In view of the evidence as to the amount of pine on these lands, and their cost to defendant, it is really uncontradicted that, if plaintiff was entitled to commissions on them, these commissions would amount to as much or more than the verdict rendered for plaintiff. Plaintiff's explanation, in his testimony, of the fact why these lands were not included, was that defendant falsely represented to him that they cost him more than one dollar per 1,000 feet of stumpage, and that, relying upon this representation, the plaintiff supposed no commission was due him on them. On the other hand, defendant denies that he ever made any such representation, but claims that it was agreed, at the time these lands were examined, that plaintiff would charge no commission on them, because he examined them when up in the woods on other business, and because defendant himself went to St. Paul to buy them of the railroad company. The defendant asked the court to charge the jury as follows:

"(1) The jury are directed to find a verdict for the defendant.

"(2) The contract of settlement dated November 17, 1882, introduced in evidence by defendant, is a contract, and cannot be altered or varied by parol. So far as it is a receipt, it might be varied by showing that the money receipted for was not paid, but only so far. There is no dispute that the money was paid as receipted for, and the contract cannot be varied, and is conclusive against the plaintiff.

"(3) Where parties meet and have a settlement of differences, and reduce such settlement to writing, such writing is presumptively conclusive upon the parties, and he who would attack it can only do it by showing clearly, by a preponderance of evidence, either fraud or mutual mistake. In this case no mistake is alleged; and plaintiff, to establish fraud, must clearly prove it by a preponderance of evidence. Fraud is never presumed; it must be proved affirmatively."

The third of these requests was granted, but the other two were refused, and their refusal is the only error assigned. As it would have been error to grant either the first or second request if there was...