Lewin v. Proehl

Decision Date14 November 1941
Docket NumberNo. 32980.,32980.
Citation300 N.W. 814,211 Minn. 256
PartiesLEWIN v. PROEHL.
CourtMinnesota Supreme Court

Appeal from District Court, McLeod County; Albert H. Enersen, Judge.

Action by Fred C. Lewin against Henry E. Proehl, trustee of Proehl & Lewin, Incorporated, to recover for services. From an order denying the defendant's alternative motion for judgment or a new trial, the defendant appeals.

Order affirmed.

O'Hara & Sheran, of Glencoe, for appellant.

Herbert H. Hoar, of Glencoe, for respondent.

STONE, Justice.

In this action to recover for services rendered under contract the verdict was for plaintiff. Defendant appeals from the order denying his alternative motion for judgment or a new trial.

Defendant, as trustee, is liquidating Proehl & Lewin, Inc., which will be referred to as the corporation. For it plaintiff's services were rendered. The contract upon which he stands was made, if at all, by defendant as president and general manager of the corporation. The latter had been in business for some time before 1932. The corporation's only stockholders were plaintiff, defendant, and the latter's wife. Its business was that of merchandising, the principal lines being groceries and hardware. It never adopted by-laws. Nor have there been any meetings of its stockholders or directors; at least there were none until its decision to liquidate.

The evidence justifies the conclusion that, while plaintiff was secretary and treasurer of the corporation, his principal duty was as a clerk in the store. All along defendant was both president and general manager. The inference is reasonable, if not inescapable, that as such he was in sole charge and control of the business, exercising as occasion required all the powers of the corporation.

The contract upon which plaintiff relies, if made, results from a conversation between himself and defendant. For some time before 1932 the business had not been going well. Instead of a profit there was annual loss. Plaintiff and defendant had been getting a fixed compensation of $100 monthly. In 1932, according to plaintiff, there was a conversation between him and defendant in which it was agreed that plaintiff's compensation should be reduced to $75 per month. Defendant's version of that talk is that each of them, plaintiff and defendant, should withdraw from the store only enough in merchandise and cash to afford a living, with a limit of $75 a month. So the issue on the facts is narrow. For the jury it was probably not so much one of credibility as of accuracy of recollection. The verdict adopts and confirms plaintiff's version.

1. By assignment of error defendant objects strenuously to rulings admitting the conclusions of plaintiff as to the meaning of the conversation. Plaintiff did testify that he and defendant "agreed" thus and so. That was objectionable because it stated plaintiff's conclusion or inference rather than the conversational facts upon which it was based.

Counsel for plaintiff had too much difficulty in framing his questions so as to elicit the basic facts; that is, the substance of the conversation, rather than plaintiff's conclusion concerning its result. But, after much difficulty and too much of leading questions, the details of the conversation were obtained from plaintiff. He stated in substance what it was, what each of the participants said, and what "we said" was that plaintiff's compensation was to be reduced from then on to $75 per month.

The argument at this point for defendant is hypertechnical in that it overlooks an inherent limitation in application of the rule invoked. Human recollection is not photographic. It has no sound track to record conversation with verbal precision. While a mere conclusion of the witness as to the meaning of what was said is incompetent, the best rendition he can make of the substance of the matter is all that can be expected. According to Dean Wigmore (7 Wigmore, Evidence, 3 Ed., § 2097), if the exact words "cannot be laid before the jury, then the witness' inferences, or net impressions, are by that very rule [the opinion rule] allowable. Consequently, if his memory of the precise words fails him, his impression of their net meaning is not forbidden by the Opinion rule. That rule does not require the impossible; it merely forbids the superfluous. It does not, in its proper use, commit the absurdity of saying that, even when the witness cannot remember the precise words, he is forbidden from giving any account at all of what he heard. Nevertheless, some Courts, misguided by the Opinion rule, have reached that result."

Among the illustrative cases cited by Dean Wigmore as dealing correctly with the problem are these. In Eaton v. Rice, 8 N.H. 378, 380, this was said: "If, then in all cases the witness is required to state what was said so accurately that the jury may be enabled to judge by the terms used what a contract was, it must frequently happen that a contract not in writing cannot be proved at all. * * * the recollection of a witness, as to what an agreement between parties was, according to his understanding of what was said by them at the time, may be very satisfactory evidence, although he may not be able to recollect distinctly one word that was said."

In Bathrick v. Detroit P. & T. Co., 50 Mich. 629, 637, 16 N.W. 172, 175, 45 Am. Rep. 63, Judge Cooley said this concerning testimony of an admission of carnal intercourse: "It would have been entirely proper to permit the witness to testify that he had conversations in which the criminal intercourse was admitted or assumed, even though he did not remember the words made use of. It is not surprising that a man should remember the substance or the result of a conversation, and yet not be able to recall the words made use of; and it sometimes casts suspicion upon the veracity of a witness that he assumes to remember the very words of a conversation, when there was nothing in the...

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