Lundgren v. Union Indemnity Co.
| Decision Date | 14 April 1927 |
| Docket Number | No. 25932.,25932. |
| Parties | LUNDGREN et al. v. UNION INDEMNITY CO. et al. |
| Court | Minnesota Supreme Court |
Appeal from District Court, St. Louis County; E. J. Kenny, Judge.
Action by Herbert T. Lundgren and another against the Union Indemnity Company and others. Verdict for plaintiff. From an order denying its motion for a new trial, the named defendant appeals. Affirmed.
Herbert T. Park, of Minneapolis, for appellant.
David J. Erickson, of Duluth, for respondents.
Action upon a contractors' bond wherein defendants Carlstad were the principals and defendant Union Indemnity Company the surety. After trial without a jury and a decision for plaintiffs, defendant surety appeals from an order denying its motion for a new trial. The assignments of error all go to the exclusion of certain telegrams and a letter, all sent from Duluth to the home office of the surety at New Orleans, supposedly by plaintiffs. They were offered by the surety in support of the claim that it was induced to execute the bond by false representations on the part of plaintiffs. Without the exhibits so offered, it has no defense.
Plaintiffs were copartners at Duluth under the firm name of Western Realty Company. As such they were agents there for the casualty department of the Union Idemnity Company. Wheeler & Merritt were agents for the bond department. The bond in suit runs to plaintiffs as individuals and not as copartners. The three telegrams were signed Western Realty Company, nothing more. The letter bears the same subscription "by R. T. Lundberg." The bond was executed January 30, 1925, pursuant to a formal application. The first telegram of January 22, 1925, read in part:
The next wire, of January 24th, was this:
The final message, of January 27th, said:
The letter, signed "by R. T. Lundberg," dated January 27th, reads:
"Re-Bond Carlstad Brothers to Western Realty Co. Enclosed herewith find financial statement for Carlstad Brothers which we stated in our telegram that we were sending you."
The statement in the last telegram of the assets and liabilities of Carlstad Brothers indicated a net worth of $213,000. That and one in the first message saying "Ætna willing to write" the bond are claimed to have been false. If not then insolvent, the firm was on the way, for it soon became bankrupt. The bond, we take it, was written before the financial statement, accompanying the letter of January 27th, was received and on the faith of the application and telegrams. The only foundation laid for the introduction of these exhibits or any of them, aside from their own contents, was testimony that they had been duly received by the surety at New Orleans. The application and financial statement are not printed and the originals have not been submitted to us, so we indulge no assumptions concerning their contents.
1. The excluded telegrams and letter were not admissible under section 9887, G. S. 1923, for that statute, making signed instruments self-authenticating in the absence of the sworn denial of his signature by the apparent subscriber, applies only to writings which are themselves the basis of an action, counterclaim or defense. Mast & Co. v. Matthews, 30 Minn. 441, 16 N. W. 155; Fitzgerald v. English, 73 Minn. 266, 76 N. W. 27. Another preliminary observation is that, their signers having chosen the telegraph as the medium of the correspondence and having so assumed the risk of error in transmission, the messages received at New Orleans, the ones offered, were the original documents for purposes of evidence. Wilson v. Minneapolis & N. W. Ry. Co., 31 Minn. 481, 18 N. W. 291; Magie v. Herman, 50 Minn. 424, 52 N. W. 909, 36 Am. St. Rep. 660; Cobb v. Glenn Boom & Lumber Co., 57 W. Va. 49, 49 S. E. 1005, 110 Am. St. Rep. 734; Jones, Evidence (2d Ed.) § 804.
Although telegrams and letters are now seldom spurious, the law has never considered it safe to make them generally self-authenticating. There must still be something to show that the message is "not the act of a stranger." Burt v. Winona & St. Peter R. Co., 31 Minn. 472, 18 N. W. 285, 289. It may be error to admit an unauthenticated telegram. Adams v. Mille Lacs Lumber Co., 32 Minn. 216, 19 N. W. 735. But the authenticating evidence may be indirect and circumstantial. It may all be without, or part without and part within, the instrument itself. It is conceivable but not probable that it may all be internal, that is that a writing may be self-authenticating. Wigmore, Evidence, § 2148. The authorship of the one sought to be bound or some one acting legally in his stead must be shown. It is not enough that the writing on its face purports to be from him. Ikenberry v. New York Life Insurance Co., 134 Minn. 432, 159 N. W. 955.
Modern methods have made of historical rather than practical interest the rule that the authenticity of telegrams "may be shown by proof of the handwriting of some person employed in the telegraph office at the time the telegram was received at the office, or by proof of the handwriting of the sender." Jones on Evidence (2d Ed.) § 802. Ordinarily other indicia of authorship must be sought. It is difficult, if not impossible, to formulate a standard of admissibility at once definite and dependable. But it occurs to us that any relevant writing may be admitted when from its contents and other circumstances in evidence it is reasonably inferable that the author is the person sought to be charged or another lawfully acting for him. "Evidence which, if uncontradicted, would satisfy a reasonable mind" is sufficient. 22 C. J. 907. That is the rationale of the rule which admits a reply letter or telegram. It is admitted without independent authentication because of the common course and...
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