Illingworth v. Greenleaf

• Court: Supreme Court of Minnesota (US)
• Writing for the Court: Berry
• Citation: 11 Minn. 154
• Decision Date: 01 January 1866
• Parties: WILLIAM ILLINGWORTH vs. D. C. GREENLEAF.

Page 154

11 Minn. 154 WILLIAM ILLINGWORTH
vs.
D. C. GREENLEAF. Supreme Court of Minnesota.

Appeal from order of district court, Ramsey County.

Action for converting from ninety-five to one hundred old watches. The answer sets up counter claims arising upon contract. The defense to the cause of action was that defendant bought the watches from the plaintiff's son, and it was claimed that he had authority from plaintiff to sell them. On the trial the plaintiff was allowed, against objection by defendant, to prove the average value of the watches. Evidence to prove the counter claims was excluded, and defendant was thereupon permitted to withdraw them. There was no evidence of authority in plaintiff's son to sell the watches. Plaintiff was allowed, against objection, to prove circumstances which should have excited suspicion of such want of authority. Plaintiff had a verdict. A motion for a new trial was denied.

Points and authorities for appellant: —

1. The court erred in admitting evidence as to the average value of the watches in controversy.

Page 155

2. The court erred in excluding all testimony in support of the second counter claim set up in the answer, because the same was connected with the subject of this action, and arose out of the same transaction. 7 Abb. Pr. R. 371; Comp. Stat. 541, § 57; 11 Abb. Pr. R. 387; 21 How. Pr. R. 190; 6 Minn. [420].

3. The court erred in excluding all evidence of the first counter claim set up in the answer, because the plaintiff alleges in the complaint that he had demanded payment for the watches of said defendant, and sought to recover the value thereof with interest in this action. He therefore waived the tort, and brought his action, ex contractu, to recover what they were worth. He does not allege tort. 6 Minn. [319]; id. [420]; id. [503]; 4 Term R. 216; 3 Pick. 495.

4. The court erred in admitting the evidence adduced to show a custom among dealers in the sale of old watches.

5. The court erred in charging the jury that there was no evidence in this case of the agency of the boy, or of the ratification by his father, the plaintiff, of the acts of his son and clerk, as his agent in the sale of these watches, For rendering a bill for the watches, and demanding payment for them, promising to pay the defendant for the watch returned, and holding the boy out to the defendant and to the public for years as his employee or clerk in his father's shop, and usual place of business, sending him to buy goods for him, both for cash and on credit, and settling bills so incurred, in the same class and kind of business, and the manner in which these watches were offered by the boy, stating at the same time, that his father had sent him, were all facts and circumstances to be left to the jury, as competent and tending to show an adoption and ratification of the sale of the watches, and of the acts of the boy as the agent of his father. "If there are peculiar relations between the parties, such as that of father and son, the presumption of ratification will become more vehement." Story Agency, §§ 256, 257, 259.

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6. The court erred in refusing to charge the jury as requested by the defendant's counsel. 1 Parsons Cont. 46; Paley Agency, 172.

7. The evidence is wholly insufficient to justify the verdict in this case.

Points and authorities for respondent: —

The testimony as to the average value of the watches was proper. The material question was, what was the value of the whole lot taken, and the value of each separate watch was wholly immaterial, except so far as it went to make up this aggregate value. This aggregate value can be ascertained by finding the value of each separate watch and adding these values together, or by finding the average value of the lot, and multiplying it by the number. By either process we arrive at the same result, and which process is used must be wholly immaterial. The evidence objected to itself shows that there is no weight to the objection.

1. The counter claims were properly rejected, neither one of them coming under either of the subdivisions of sec. 71, p. 541, Comp. Stat. This action is founded on tort, not on contract, while both counter claims are contracts.

2. The counter claims were both withdrawn. Thereby the appellant waived all right to insist on a new trial by reason of their exclusion. If a new trial were granted he could not...