Lepak v. Lepak
| Decision Date | 21 June 1935 |
| Docket Number | 30404. |
| Citation | 261 N.W. 484,195 Minn. 24 |
| Parties | LEPAK v. LEPAK et al. |
| Court | Minnesota Supreme Court |
Appeal from District Court, St. Louis County; Albert E. Enersen Judge.
Action by Helen K. Lepak against Andrew S. Lepak and Francis J Lepak. The action was dismissed as to Francis J. Lepak. From an order denying his alternative motion for judgment notwithstanding the verdict or a new trial, Andrew S. Lepak appeals.
Order denying defendant's motion for new trial reversed.
Syllabus by the Court .
1. In a suit to recover for improvements made by plaintiff upon land of defendant, under an unenforceable oral contract for its conveyance to plaintiff, the measure of damages is not cost or value of improvements, but enhancement in value of the real estate because thereof.
2. The purpose of the hearsay rule, and its only proper use, is to exclude what otherwise would be testimony untested by cross-examination and unvouched for as to trustworthiness by oath. Hence, the making of an alleged oral contract being within the issues and relevant, it was prejudicial error to exclude as hearsay otherwise competent testimony of the terms of such contract.
Courtney & Courtney, of Duluth, for appellant.
Hunt & Palmer, of Duluth, for respondents.
Action in quasi contract to recover for improvements alleged to have been made by plaintiff on land of defendant Andrew S. Lepak. There was a dismissal as to defendant Francis J. Lepak. Plaintiff had a verdict against defendant Andrew, who appeals from the order denying his alternative motion for judgment notwithstanding or a new trial.
Plaintiff is the wife of defendant Francis J. Lepak. They are estranged and not living together. The defendants are brothers. The involved real estate is a lake shore summer residence property, owned by defendant Andrew. Plaintiff's claim is that in May, 1922, he ‘ orally agreed ’ with her, if she and her husband ‘ would enter into possession of the westerly one-half’ of the property ‘ and construct thereon a summer home, that said premises would be plaintiff's and that defendant, Andrew S. Lepak, would thereupon convey the same to plaintiff.’ She alleges that pursuant to that oral contract she constructed a cabin and made other valuable improvements; that, defendant Andrew having repudiated his agreement and forbidden plaintiff further use of the property, she is now entitled to recover the enhanced value of the premises resulting from her improvements.
1. Without suggesting that the cost of the improvements or the value thereof may not have evidentiary value, we should say, because there has been some question about it and there must be a new trial, that the measure of damages is not the value of the improvements but the resulting enhanced value of the real estate. Keener, Quasi Contracts, 364. That is because the only liability in such cases is for the unjust enrichment of the defendant that would result if there were no recovery. Lancoure v. Dupre, 53 Minn. 301, 55 N.W. 129; Schultz v. Thompson, 156 Minn. 357, 194 N.W. 884; Burleson v. Langdon, 174 Minn. 264, 268, 219 N.W. 155. See also Keener, Quasi Contracts, 278.
2. There must be a new trial because of prejudicial error in excluding evidence offered for the defense. By his answer, defendant Andrew denied the contract alleged by plaintiff and averred that the improvements were made not by plaintiff but by her husband, defendant Francis, under an agreement between the latter and defendant Andrew, whereby Francis and his family were to have the use of the land for ‘ recreation and diversion,’ without compensation ‘ but with the right and privilege’ to Francis ‘ to abandon or remove said cottage at any time he saw fit.’ On the pleadings, then, the issue was whether the improvements were made under contract between plaintiff and defendant Andrew, or under one between the latter and Francis.
Plaintiff's husband was called as a witness for his brother Andrew. For tactical reasons, he was permitted to testify at length, notwithstanding that he was plaintiff's husband. Both from him and from defendant Andrew himself were attempted to be elicited the terms of the alleged contract between them. The objection that the offered testimony was hearsay was made and sustained. In aid of the questions was a rejected offer of proof while Francis was under examination.
In support of the exclusionary ruling, Miller v. Lathrop, 50 Minn. 91, 52 N.W. 274, and Rutherford v. Selover, 87 Minn. 495, 92 N.W. 413, 414, are cited. In the former, the evidence excluded was considered incompetent because it went exclusively to the actions of an alleged agent not known to or acquiesced in by the principal. In the other case while the testimony under discussion was referred to as hearsay, the true ground for its exclusion was found in the fact that the conversations ‘ were wholly irrelevant to any issue in the case.’ More in point is First National Bank v. St. Anthony & Dakota Elevator Co., 103 Minn. 82, 114 N.W. 265, 267. There an alleged agent had been called to prove facts, including conversations within his own knowledge, tending to show his agency. ‘ Such evidence,’ said the court, ‘ is not hearsay, but original.’
The precise issue is ruled by Claggett v. Chicago, Milwaukee & St. Paul R. Co., 156...
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