Deatherage v. Petruschke

• Decision Date: 16 October 1908
• Docket Number: 15,725 - (227)
• Citation: 118 N.W. 153,106 Minn. 20
• Parties: ISAAC DEATHERAGE and Another v. CHARLES J. PETRUSCHKE and Another
• Court: Minnesota Supreme Court

118 N.W. 153

106 Minn. 20

ISAAC DEATHERAGE and Another v. CHARLES J. PETRUSCHKE and Another

Nos. 15,725 - (227)

Supreme Court of Minnesota

October 16, 1908

Action in the district court for St. Louis county to recover $330.81, the balance alleged to be unpaid upon a contract for painting and decorating a certain house. Defendants set up a counterclaim that the work was not done in a workmanlike manner. The case was tried before Ensign, J., and a jury which rendered a verdict in favor of plaintiffs for $277.21. From an order denying defendants' motion for judgment notwithstanding the verdict or for a new trial, they appealed. Reversed and new trial ordered.

SYLLABUS

Evidence.

Before any work had been done or any material had been furnished under a written contract for decorating a building, the wife of one party, at his request, but without the authority or consent, express or implied, of the other party, made an entry in a book of an oral contract as of a later date, which modified the original agreement, and which the other party denied having entered into. It is held that the entry was inadmissible as self-serving, and that its reception was prejudicial error.

Alexander Marshall, for appellants.

Jno. Jenswold, Jr., and John Heitmann, for respondents.

OPINION

JAGGARD, J.

Defendants and appellants let a contract for the remodeling of their house to one Zauft, who sublet part of the work to plaintiffs and respondents. Plaintiffs claimed that they undertook to finish the house more elaborately than was originally contemplated, that they subsequently entered into an oral contract with defendants whereby plaintiffs agreed to do the decorating and defendants to pay $250, that afterward defendants desired other changes and additions, and that plaintiffs fully performed their oral contract and did the work in a proper manner. Defendants insist, inter alia, that no such subsequent oral contract was made, that the work done by plaintiffs was under the Zauft contract and for "the agreed sum of $170, in addition to $135 then paid or thereafter to be paid to said plaintiffs by one Zauft," and that plaintiffs had been in fact paid $150. The principal dispute concerns the oral contract for $250. The jury found for the plaintiffs. This appeal was taken from the order denying the defendants' usual alternative motion.

To prove the execution of the oral contract, the wife of one of the plaintiffs testified that she made in a book (offered in evidence) an entry of the materials and of the various contracts, amounts paid, etc. "If it was a contract, did you make a memorandum of that contract? A. I did. Q. Did you make a memorandum of the contract here in question between" [plaintiff and your husband] Mr. Deatherage and Mr. Petruschke? "A. I did. (I entered it in my book under the date of October 18th.) I know that the date on which this entry was made was the date upon which the contract was made to which that entry referred. I know the contract was entered in this book the day it was made. I remember distinctly of him [the respondent] coming in and ordering me to put this in the book. I received these facts in relation to what I call the contract from my husband." The court, after some further proof by the husband himself and one of the defendants, admitted in evidence an exhibit, a part of the book, which contained the entry:

"10/18. Mrs. Petruschke.

To lining walls and painting three rooms and hall,

250.00."

This was duly objected to, and, when the objection was overruled an exception was taken. This exception was within the scope of the motion for a new trial. The admission of this evidence was here duly assigned as error and argued in this court. The question is properly before us for decision. Not the colloquy between counsel for plaintiff and the court on trial, nor what may have happened on the argument of the alternative motion in the court below, nor in the sending of the exhibit to the jury, nor any conduct on the part of the counsel for plaintiff, amounted to a waiver of his objection and exception.

The evidence quoted and the nature of the entry itself show that the exhibit was offered as a memorandum of a contract to prove the contract. It was made before any material had...