Lahr v. Kraemer

• Decision Date: 27 November 1903
• Docket Number: Nos. 13,744 - (85).,s. 13,744 - (85).
• Citation: 91 Minn. 26
• Parties: FRANK M. LAHR v. N. P. KRAEMER.<SMALL><SUP>1</SUP></SMALL>
• Court: Minnesota Supreme Court

91 Minn. 26

FRANK M. LAHR v. N. P. KRAEMER.¹

Nos. 13,744 - (85).

Supreme Court of Minnesota.

November 27, 1903.

Appeal by defendant from an order of the district court for Morrison county, Searle, J., denying a motion for a new trial. Affirmed.

Calhoun & Bennett, for appellant.

Stewart & Brower, for respondent.

BROWN, J.²

Action to recover for work, labor, and services performed by plaintiff for defendant, in which plaintiff had a verdict, and defendant appealed from an order denying his motion for a new trial.

The complaint alleges that between January 18, 1902, and April 13, 1902, plaintiff performed work, labor, and services for defendant at the agreed compensation of $40 per month, no part of which has ever been paid. The defense to the action was:

1. That at the time stated in the complaint defendant was engaged in the saloon business, and employed plaintiff as his bartender; that between February 13, 1902, and April 30 of the same year, defendant was absent from his place of business, and left it in the sole charge of plaintiff; that a stock of liquors and cigars was committed to his care, to be sold in the ordinary course of trade; that during the absence of defendant plaintiff sold and disposed of a large quantity of such stock, and unlawfully converted the proceeds to his own use; that he was guilty of a breach of his contract faithfully to perform and discharge his duties, and failed and neglected properly to account for the proceeds of the sales made by him.

2. As a counterclaim defendant realleged the same facts, and charged that plaintiff wrongfully and unlawfully converted to his own use the proceeds of sales made by him during defendant's absence to the amount of $210.85, for which judgment was demanded against plaintiff.

A large number of errors are assigned in this court, principally to portions of the charge of the court to the jury, which we have patiently examined. The point that the verdict of the jury, being for plaintiff, is clearly and palpably against the evidence, and should be set aside, cannot be sustained. The evidence, though making out a fairly strong case against plaintiff, is not so clearly against the verdict as to warrant interference by this court; the verdict having been approved by the trial court, and the assignments of error respecting the charge to the jury disclose no reversible error.

It is contended that the court erred in instructing the jury that the burden of proof to establish the allegations of defendant's answer in respect to the amount of plaintiff's alleged shortage was upon defendant. Defendant, having alleged in defense the misconduct and dishonesty of plaintiff in the performance of his duties, was bound to establish the truth of the charge by a fair preponderance of the evidence. It was not necessary to show that plaintiff was guilty of the crime of embezzlement or larceny, and the trial court so instructed the jury. While the court made use of the words "embezzlement" and "larceny" a number of times, the jury was distinctly told that the same degree of proof was not required in a case of this kind as in a prosecution for crime; that defendant was required to show misappropriation of his funds by a fair preponderance of the evidence only; further, that, if defendant established such...