Flick v. Ellis-Hall Co.
| Decision Date | 23 November 1917 |
| Docket Number | 20,566 |
| Citation | 165 N.W. 135,138 Minn. 364 |
| Parties | E. M. FLICK v. ELLIS-HALL COMPANY |
| Court | Minnesota Supreme Court |
Action in the district court for Hennepin county to recover $1,548 commission for services rendered pursuant to contract. The case was tried before Fish, J., who at the close of the testimony granted the motion of defendant Ellis to dismiss the action as to him and denied the motion of plaintiff for a directed verdict, and a jury which returned a verdict for the amount demanded. From an order denying its motion for a new trial, defendant appealed. Affirmed.
Trial -- charge to jury -- discretion of trial judge -- new trial.
1. A certain latitude as to the form and expression of a charge is necessarily left to the trial judge. It is not improper for him to state the reasons which called legal rules into being. He may direct the attention of the jury to the relevancy of certain evidence to particular issues, so long as the determination of such issues is left to them. Mere verbal inaccuracies in the charge will not be ground for a new trial, unless attention was called thereto before the jury retired.
Contract -- consideration.
2. Under the facts developed at the trial the defense of want of consideration, for the contract involved in the action, was not made out.
Cross-examination.
3. The extent to which, upon cross-examination, inquiry may be made, concerning a witness' pecuniary interest in the claim in litigation, is left to the sound discretion of the trial court.
Admission of evidence -- harmless error.
4. The admission in evidence of a telegram was not a violation of the rule forbidding offers of compromise to be received, for according to the claim of plaintiff there was then no dispute as to the validity of the claim, and, furthermore, the party objecting subsequently offered the same telegram, and a response thereto, in evidence.
Contract -- defense of fraud.
5. The general allegation of fraudulent representations inducing the contract was not sufficient to admit the defense, since the false or fraudulent representations were not set out, nor was there an offer of proof so as to enable the court to determine whether any such representations constituted a defense.
George T. Simpson and Hall, Alexander & Purdy, for appellants.
Hall & Tautges, Bessesen & Bessesen and Gale P. Hilyer, for respondent.
In this action, upon a written contract, a verdict was rendered for plaintiff. Defendant's motion for a new trial was denied and it appeals.
Plaintiff is doing business as a sales agent. Her husband is the manager. Defendant, a corporation, on December 24, 1915, owned a stock of goods and fixtures at Brookings, South Dakota, when plaintiff, by written contract, undertook to conduct a "quitting business" sale of the same for defendant, the compensation to be 6 per cent of the gross amount of the sales. Pursuant to the terms of the contract, sales were advertised and had up to the twenty-sixth day of February, 1916. Plaintiff claims that then a second contract was entered into terminating the first, but continuing the employment. Under the terms of the second instrument, signed by defendant's president and delivered to plaintiff, the latter was to receive as compensation 4 per cent instead of 6, if an exchange or sale of the goods and fixtures was made, and this even though the deal was made by defendant without plaintiff's aid. As a part of that second contract, plaintiff executed and delivered to defendant's president a written document terminating the first agreement. An exchange was made about March 4, 1916, the value of the property thereby disposed of being $43,700. If the second writings ever took effect as a contract, no other result could be arrived at than a recovery in the amount of the verdict rendered, unless the defense of fraud was available under the pleading. The answer alleged, that the second document was executed and delivered by the president of defendant upon the express understanding that it was not to take effect, as a contract, until the two other stockholders of defendant gave their assent; that these stockholders refused their assent; that the signature of defendant to the contract was obtained by means of fraudulent representations; and that there was no consideration. The court submitted the issue of conditional delivery only, holding that fraud was not sufficiently pleaded, and that, if the second contract took effect, there was a legal consideration.
The assignments of error are numerous, but we do not feel called upon to notice the ones not discussed by appellant. The one most urgently pressed upon our attention relates to the court's charge. A certain latitude as to form and expression of a charge is necessarily left to the trial court. The purpose of a trial is to do justice between the litigants. The court as well as the jury has a part to perform in attaining it. It is not amiss, at times, to explain the reasons that called legal rules into being. It may give the jury a clearer view of the issues to be determined by them. Neither is the court prohibited from directing the jury to consider certain evidence in passing upon a particular issue, so long as the jury are permitted to determine the issue according to their own judgment. State v. Rose, 47 Minn. 47, 49 N.W. 404. A mere verbal inaccuracy in the charge does not call for a new trial, where no effort was made to direct the court's attention to it at the time, and it is apparent that had attention been called thereto a correction would likely have followed. Steinbauer v. Stone, 85 Minn. 274, 88 N.W 754, and cases cited under section 9798, Dunnell, Minn. Dig. and 1916 Supp. We therefore see no impropriety in calling attention to the rule that the terms of a written contract are not to be contradicted by oral testimony of what the parties said during the negotiations leading up to its execution, and stating the reasons for the existence of the rule. The defense submitted to the jury came in under an exception to the rule, and was thus referred to by the court. But we fail to find any suggestion in the charge that therefore the defense should be disfavorably viewed by the jury. The expressions "escape liability" and ...
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