Huston v. Johnson

• Decision Date: 19 March 1915
• Citation: 151 N.W. 774,29 N.D. 546
• Parties: HUSTON v. JOHNSON.
• Court: North Dakota Supreme Court

29 N.D. 546

151 N.W. 774

HUSTON

v.JOHNSON.

Supreme Court of North Dakota.

Feb. 17, 1915.

On Rehearing, March 19, 1915.

Syllabus by the Court.

As a rule, self-serving declarations, whether oral or written, are inadmissible.

As a rule, a letter containing statements favorable to the sender is not admissible for himself, but should be excluded as a self-serving declaration.

Where incompetent evidence is admitted over objection, before such error can be disregarded as nonprejudicial, it must appear that the error did not and could not have prejudiced the rights of the complaining party. And the case must be such that the appellate court is not called upon to decide, from the preponderance of the evidence, that the verdict was right, notwithstanding the error complained of.

The defendant claimed that he never authorized the plaintiff to procure purchasers for his land, but that he made some such agreement with a man in charge of plaintiff's office in the absence of plaintiff, and that this was the only authority plaintiff could have acted upon in procuring purchasers. Defendant offered testimony to show the terms of such agreement. This evidence was excluded by the trial court on the theory that, before such evidence could be admitted, the defendant must establish the fact that such person was the duly authorized agent of the plaintiff. Held, that the exclusion of this testimony was error.

Under an allegation in the answer that a certain agreement was entered into between the plaintiff and the defendant, evidence is admissible to show that such agreement was made with the defendant by plaintiff's agent.

On Rehearing.

The general rule that objections to evidence must be specific admits of this exception: That if they cannot in any manner be obviated, or if the evidence is clearly inadmissible for any purpose, a general objection will suffice.

Plaintiff offered in evidence a copy of a letter, which plaintiff claimed he had written to the defendant, the contents of which were largely self-serving declarations. The evidence already admitted at that time showed that defendant had not received the letter. Held, that a general objection to such letter that it was “irrelevant, incompetent, and immaterial” was sufficient, and that the admission of such letter over such objection was error.

Appeal from District Court, Stutsman County; Coffey, Judge.

Action by Wendell Huston against Elof Johnson. From judgment for plaintiff, defendant appeals. Reversed, and new trial ordered.A. B. Darelius, of Minneapolis, Minn., for appellant. Thorp & Chase, of Jamestown, for respondent.

CHRISTIANSON, J.

This is an appeal from a judgment in favor of the plaintiff for a real estate broker's commission. The case was tried before a jury, and a verdict returned for the plaintiff for $4,000, and, from the judgment entered on such verdict, this appeal is taken. There is a square conflict between the plaintiff and defendant upon the principal questions at issue. The plaintiff is a real estate broker living at Carrington, N. D. The defendant is a farmer living in Stutsman county, where he owns two tracts of land located only a short distance apart, aggregating 960 acres. The plaintiff in his complaint alleges: That the defendant employed him as a broker to sell 480 acres of this land for not less than $14,000, and that the plaintiff was to receive for his commission whatever he might receive over $14,000 therefor. That thereafter he found certain purchasers who were ready, able, and willing to buy these lands and pay therefor the sum of $18,000. The defendant in his answer asserts that no such agreement was made, but that the plaintiff agreed to sell the entire 960 acres for $26,000. The 480-acre tract which plaintiff claims to have sold was that portion of the tracts on which all the buildings were located. There is also a square conflict under the testimony as to when, where, and in what manner and upon what terms the contract of employment between the plaintiff and the defendant was made. Plaintiff testified that the defendant came to his office at Carrington between August 27th and September 1st, and at that time stated that he wanted plaintiff to sell some land he had near Edmunds, consisting of two parcels, and that the plaintiff stated he would have to sell it out in parcels, and that it would be impossible to get one purchaser to buy the whole amount of both tracts, and that the defendant gave a price of $25 per acre if the entire amount of both tracts were sold, or $14,000 for a 480-acre tract on which the buildings were located and $12,000 for the other tract. Plaintiff further testified that, in accordance with this agreement, he procured two purchasers who were willing to buy the 480-acre tract on which the buildings were located for $18,000, and that he entered into preliminary contracts with them, and that, immediately after the deal had been made, he called the defendant on the telephone and notified him of the fact that the land had been sold; that the defendant stated that he was busy and could not get up to Carrington for a couple of days. Plaintiff further claims that a couple of days after the telephone conversation he wrote the defendant; that he kept a copy of the letter and mailed the original in the post office at Carrington, addressed to Elof Johnson, at Edmunds, N. D. Without any further foundation, a copy of the letter was offered and received in evidence, over objection that the same was irrelevant, incompetent, and immaterial, and that no foundation for its introduction had been laid. The letter so received in evidence was as follows:

Exhibit B.

October 23, 1911.

Mr. Elof Johnson, Edmunds, N. Dak.-Dear Sir: I have sold your farm, the west half of 15, and northwest quarter of 22, which you had listed with me. This farm is well sold. The parties, who bought it, are wealthy Illinois farmers and can pay out in five years the entire amount due, after making a first payment. Wish you would call at once and we will close the matter up. Have contract for deed with abstract sent to them at once and first payment will be turned over to you. Will say that I would like part of this first payment to pay my agents with, but I am sure you will do what is right and I want to talk with you and we can arrange matters satisfactorily at that time. I called you up this morning but was told that you had gone to Jamestown, and I look for you back up here on to-day's train.

Hoping to see you soon, I remain, yours very truly.

The defendant denied having received the letter of which Exhibit B purported to be a copy, and the plaintiff admitted that when defendant came to Carrington to see him regarding the proposed land sale, some time subsequent to the sending of the letter, he made no reference thereto, and in no manner acknowledged its receipt. No notice to produce the original was served upon defendant, or his counsel, and no other foundation than that above indicated laid for its introduction. An exception was saved to the court's ruling in admitting Exhibit B, and its reception is one of the errors presented on this appeal. Defendant, on the other hand, contends that the agreement under which plaintiff acted in obtaining the purchasers for the land was entirely different, and made in an entirely different manner, and upon entirely different terms than those asserted by the plaintiff. In the first place, defendant claims that he had no talk with the plaintiff personally, but that some time in the first part of September, 1911, while in Carrington, he went to the plaintiff's office, and upon inquiry from the stenographer whether the same was a land office or not was informed that it was, and that the stenographer thereupon called some man from the back part of the office, and that this defendant then gave to such man, in plaintiff's office, the description of the land and the prices and terms at which the defendant was willing to sell the same. The defendant also claims that at that time he stated that the entire two tracts of 960 acres must be sold at $26,000, and that the defendant was not willing to sell any part unless he sold the whole thereof. Defendant claims that this was the only time he ever extended any authority to plaintiff to sell the land, or ever gave any terms upon which he would make sale, and that therefore, if plaintiff made sale at all, he was bound by and must act under the arrangement so made at that time. Defendant further claims that some time subsequent thereto the plaintiff came to the defendant's farm, and at this time the plaintiff stated that he was going to find a purchaser for the land, but no terms of sale were discussed, and that subsequent thereto defendant received a telephone message from the plaintiff, and that defendant thereupon went to Carrington and had some talk with the plaintiff in the bank regarding the proposed sale, but that during none of these talks did the defendant in any manner agree to any deviation from the terms of sale proposed by him to the man in the plaintiff's office. The trial court sustained objections to the testimony of the defendant with reference to the conversation the defendant claimed to have had with the man in plaintiff's office on the apparent theory that it was incumbent upon the defendant to prove that the person with whom he talked had authority to represent the plaintiff. The defendant's counsel therefore made an offer of proof as follows:

“At this time the defendant offers to show that on or about the 1st of September, 1911, he went to the plaintiff's office in Carrington, N. D., and at that time met the stenographer or lady clerk in Mr. Huston's office, who called from the private office some man who represented to Mr. Johnson that he was the agent of Mr. Huston, and that Mr. Johnson at that time gave him a description of his lands, the lands mentioned in the complaint and the three quarters additional mentioned by the witness on the stand, and...