Hillestad v. Hostetter

• Decision Date: 30 June 1891
• Citation: 46 Minn. 393,49 N.W. 192
• Parties: HILLESTAD ET AL. v HOSTETTER ET AL.
• Court: Minnesota Supreme Court

46 Minn. 393

49 N.W. 192

HILLESTAD ET AL.vHOSTETTER ET AL.

Supreme Court of Minnesota.

June 30, 1891.

(Syllabus by the Court.)

1. Evidence examined, and held sufficient to support a finding by the jury that certain goods sold to defendants were to be paid for in lumber.

2. The time of delivery and prices of the lumber not being particularly specified, it is sufficient that the defendants were ready and willing to furnish it at their lumber-yard, when called for by plaintiffs, at the current market rates.

3. Objectionable evidence, promptly or without unreasonable delay stricken out by the court on motion, held not prejudicial, under the circumstances of the case as appearing of record.

Appeal from district court, Polk county; MILLS, Judge.

A. C. Wilkinson, for appellants.

H. Steenerson and W. H. Averill, for respondents.

VANDERBURGH, J.

The plaintiffs sue to recover for a bill of goods sold and delivered to the defendants and to Carver Bros., lumbermen, at the request and by the order of the defendants. The account, as rendered, is admitted by the pleadings to be correct, except as to an alleged excess of $9.25 in the account with Carver Bros. The only issue in the case litigated was whether the goods were furnished under an agreement that they were to be paid for by the defendants in lumber. The defendants allege that such was the agreement, and the plaintiffs deny it. The parties live in the same town, the plaintiffs being dealers in general merchandise, and the defendants engaged in selling lumber. The defendants' evidence tends to prove that in December, 1888, they and the Carvers were trading with another merchant, and that at the request of the plaintiffs he made an arrangement with them to deal with them, and “take goods for lumber,” and “that, at plaintiffs' request, Carvers Bros., who were lumbering for defendants, were also induced to get their supplies of plaintiffs, to be paid for in the same way. There was no error in allowing the defendants to show that this change was made, and that the latter requested the Carvers to trade with plaintiffs on their account. This was an item of evidence confirmatory of the defendants' claim as to the nature of the agreement. One of the Carvers (O. F. Carver) sworn for the defendants testified that there was some trouble with plaintiffs about their orders, and that one of the plaintiffs explained to him that the reason was that the pass-book was not presented, but said “that it was all right,” he “had made a trade with Hostetter,” and “should need a considerable lumber in the spring.” The witness also testified that he told him in the same conversation what Hostetter had said “that he had made a trade with him to get goods there, and that he was going to take lumber.” O. P. Carver also testified that he changed his trade to plaintiff at Hostetter's request. He was then asked by defendants' counsel to state what that request was. This question the witness was allowed to answer, over the objection of plaintiffs' counsel, and in his answer he stated “that Hostetter wanted him to trade with plaintiffs, because he had arranged with them to take lumber, and he was to take groceries. We think it was error to allow the witness to testify as to the terms or particulars of the request. It was immaterial and hearsay. It was...