Gay v. Kelley

• Decision Date: 12 November 1909
• Docket Number: 16,276 - (59)
• Parties: HARRY H. GAY and Others v. MICHAEL F. KELLEY
• Court: Minnesota Supreme Court

123 N.W. 295

109 Minn. 101

HARRY H. GAY and Others v. MICHAEL F. KELLEY

Nos. 16,276 - (59)

Supreme Court of Minnesota

November 12, 1909

Action in the district court for St. Louis county against Samuel Uren and Michael F. Kelley to recover a balance of $509.25. The complaint alleged the purchase by plaintiff brokers of certain shares of stock at the request of defendant Uren and, upon his refusal to pay, a sale of the same, and that "said defendant Uren was at all times acting for and on behalf of and as the agent of defendant Michael F. Kelley who authorized and directed defendant Uren to cause said Cliff Mining Company's stock to be purchased by plaintiffs for him, said defendant Michael F. Kelley, as aforesaid; but defendant Uren did not disclose to these plaintiffs his said agency or that he was acting in said transaction for said Kelley." The defendants answered jointly and denied the contract and the agency.

The case was tried before Dibell, J., and a jury. At the close of plaintiffs' case, defendant's motion to dismiss the action as to defendant Kelley was denied, while plaintiffs' motion to dismiss as to defendant Uren was granted. At the close of defendant's case defendant Kelley moved the court to direct a verdict in his favor, for the reason (1) that the plaintiff has shown no agency on the part of the defendant Uren sufficient to bind the defendant Kelley in this transaction; (2) for the further reason that under the evidence it appears, as matter of law, that the plaintiffs selected Samuel Uren and attempted to hold him and cannot now maintain this action against the defendant Kelley and waive the right to hold the defendant Kelley in this action by the actions of the plaintiffs after the transaction in question and before the commencement of the present action. This motion was denied. The case was submitted to a jury which returned a verdict in favor of plaintiffs for $509.21. Defendant Kelley then moved the court for judgment notwithstanding the verdict or for a new trial. The court ordered: "1. That the motion of the defendant Kelley for judgment notwithstanding the verdict be denied. 2. That the motion of the defendant Kelley for a new trial be granted." To this order was attached the following memorandum: "I am not satisfied to hold under the evidence as it is that a verdict should have been directed in favor of the defendant Kelley, upon the theory that the plaintiffs had elected to proceed against the defendant Uren. The question probably ought to be determined as one of fact. The trial was quite unsatisfactory owing to the failure of the court to apprehend the real questions of law applicable to the issues. There were probably some positive errors of law, but aside from that it is best that there be a new trial."

From that part of the order denying the motion for judgment defendant Kelley appealed. From that part of the order granting a new trial, plaintiffs appealed. Affirmed.

SYLLABUS

Order Granting New Trial -- Reference to Memorandum by Appellate Court.

When a motion for a new trial is made upon the ground that the verdict is not supported by the evidence and for errors of law occurring at the trial, and the order of the court granting a new trial does not specify upon what ground the motion is granted, the memorandum of the trial court may be referred to, for the purpose of ascertaining upon what ground the order was granted, notwithstanding the omission of the word "memorandum" in subdivision 7, § 4198, R.L. 1905.

Undisclosed Principal -- Enforcement of Contract against Him or His Agent.

Where one party to a contract deals with another as principal, and afterwards discovers that such party was in fact an agent for an undisclosed principal, he may enforce the contract against such agent, or against the principal; but, where the undisclosed principal denies that he is the principal, the party who seeks to enforce the contract may commence an action against both, in order to ascertain the facts. Held, on the facts before the trial court at the beginning of the trial, the court did not err in not requiring plaintiffs to elect as between the parties defendant.

In such case the dismissal of the action at the close of plaintiffs' case as to one of the defendants, in response to their motion to elect, was equivalent to an election to hold the other defendant. Held, defendant Kelley was not prejudiced by the order of the court permitting plaintiffs to reopen their case after resting and dismissing the same as to defendant Uren.

Election by Plaintiff -- Question for Jury.

Under the evidence it did not conclusively appear that plaintiffs had elected to hold defendant Uren, and that they had abandoned their action as against defendant Kelley. Under all of the evidence it was a question of fact properly submitted to the jury.

Baldwin, Baldwin & Dancer, for plaintiffs.

McMahon & Rock, for defendant.

OPINION

LEWIS, J.

Respondents were stockbrokers, and brought this action to recover the amount claimed to be due for the failure to pay for certain stock alleged to have been purchased by appellant Uren for and on behalf of appellant Kelley. Appellants moved for judgment notwithstanding the verdict in favor of defendant, and, if that be denied, for an order setting aside the verdict and granting a new trial. The court denied the motion for judgment notwithstanding the verdict, but granted the motion for a new trial, without stating in the order upon what ground, whereupon Kelley appealed from that portion of the order denying his motion for judgment, and respondents appealed from that part of the order granting the motion of appellant Kelley for a new trial. Counsel for Kelley conceded at the argument that the appeal from the order denying the motion for judgment notwithstanding the verdict would have to be abandoned, under the authority of St. Anthony Falls Bank v. Graham, 67 Minn. 318, 69 N.W. 1077; Oelschlegel v. Chicago G.W. Ry. Co., 71 Minn. 50, 73 N.W. 631, and Savings Bank of St. Paul v. St. Paul Plow Co., 76 Minn. 7, 78 N.W. 873, and the only question remaining was whether the court erred in granting a new trial.

A memorandum of the trial court was attached to, but not made a part of, the order granting the motion for a new trial. In that memorandum the trial judge states that he had some doubt as to the rules of law applicable to the case; "but, aside from that, it is best that there be a new trial." At the argument before this court it was assumed by the court and counsel that chapter 46, p. 51, Laws 1901, was still in force, and that the memorandum, although not attached to the order, might be considered for the purpose of determining upon what ground the order was granted. Since the argument our attention has been called to the fact that chapter 46 was amended by the Revised Laws of 1905, by striking out the word "memorandum." Subdivision 7, § 4198, R.L. 1905, with reference to new trials, reads:

"That the verdict, decision or report is not justified by the evidence, or is contrary to law; but unless it be so expressly stated in the order granting a new trial, it shall not be presumed on appeal to have been made on the ground that the verdict, decision or report, was not justified by the evidence."

Prior to the enactment of chapter 46, Laws 1901, the rule was that, when a new trial was granted in general terms, the memorandum could not be referred to for the purpose of determining upon what ground the order was granted. Morrow v. St. Paul City Ry. Co., 65 Minn. 382, 67 N.W. 1002. And presumably chapter 46 was enacted to change the effect of the decision. In Halvorsen v. Moon & Kerr Lumber Co., 87 Minn. 18, 91 N.W. 28, 94 Am. St. 669, decided June 27, 1902, the motion for a new trial was based upon several grounds, and there was no memorandum. The court held that the order granting the motion for a new trial could be sustained only for errors of law occurring at the trial, and reference was made to chapter 46, Laws 1901. This decision was followed in Berg v. Olson, 88 Minn. 392, 93 N.W. 309; Fitger v. Guthrie, 89 Minn. 330, 94 N.W. 888; Hillestad v. Lee, 91 Minn. 335, 336, 97 N.W. 1055; Owens v. Savage, 93 Minn. 468, 101 N.W. 790; Briggs v. Rutherford, 94 Minn. 23, 101 N.W. 954; Merrill v. Pike, 94 Minn. 186, 102 N.W. 393; Sather v. Sexton, 101 Minn. 544, 112 N.W. 1142.

The above cases have reference solely to those orders granting a new trial in general terms, when the motion for a new trial was based upon two or more grounds; but there is another line of decisions having reference to the use of the memorandum when not made a part of orders other than those granting a new trial. In the case of Myers v. Chicago, St. P., M. & O. Ry. Co., 69 Minn. 476, 72 N.W. 694, 65 Am. St. 579, the order appealed from was one overruling a demurrer, and the court held that the order should be taken with all the force and effect which its language implied, uncontrolled by the memorandum of the trial court. So in Boen v. Evans, 72 Minn. 169, 75 N.W. 116, where the motion before the trial court was for leave to amend the complaint, the motion was denied in general terms, and it was held that the memorandum could not be considered to determine upon what ground the motion was granted; it appearing from the order itself that it was one addressed to the discretion of the court. A similar case is Kertson v. Great Northern Exp. Co., 72 Minn. 378, 75 N.W. 600. This rule was modified in Johnson v. Johnson, 92 Minn. 167, 99 N.W. 803, to the extent that the memorandum, although not made a part of the order, might "be resorted to for the purpose of interpreting the meaning of the findings;" but, as limited by later decisions, the memorandum cannot be referred to for the purpose of impeaching the...