Olson v. Gjertsen

• Decision Date: 29 January 1890
• Citation: 44 N.W. 306,42 Minn. 407
• Parties: OLSON v GJERTSEN.
• Court: Minnesota Supreme Court

42 Minn. 407

44 N.W. 306

OLSONvGJERTSEN.

Supreme Court of Minnesota.

Jan. 29, 1890.

(Syllabus by the Court.)

1. The materiality of certain evidence considered.

2. Opinion evidence, as to the value of the professional services of an attorney, is not, as a matter of law, conclusive on the jury.

3. The granting or refusing a new trial, on the ground of improper remarks by counsel to the jury, is a matter largely addressed to the discretion of the trial judge.

4. As a general rule, such remarks are no ground for a new trial, if desisted from upon objection being made, or when the court interferes.

Appeal from district court, Hennepin county; HOOKER, Judge.

Gjertsen & Rand, for appellant.

Ueland, Shores & Holt, for respondent.

MITCHELL, J.

In an action upon a promissory note, executed by defendant to the plaintiff's intestate, the defendant interposed a counter-claim for professional services and disbursements as attorney, alleged to have been rendered and made for the deceased. The reply put in issue all of the counter-claim except $40, and also pleaded payment in full by the deceased in his lifetime. The evidence in support of the counter-claim consisted entirely of defendant's own testimony, who also introduced in evidence his books of account.

1. Part of the counter-claim was for services claimed to have been rendered for the deceased in certain business transactions between him and third parties which the evidence tended to show were, in each case, for the benefit and accommodation of the latter rather than of the deceased. The plaintiff was permitted, against defendant's objection, to prove that he had charged and collected fees of these other parties for services rendered in the same transactions. Notwithstanding that defendant testified that what he charged Olson for did not include any of the services for which he had charged the other parties, yet we think it was competent, in connection with the evidence showing the nature and purpose of these transactions, to show that defendant had collected fees from the other parties, as bearing upon the question whether there was any understanding or implied agreement between defendant and Olson that the latter should pay for any part of defendant's services connected with the same transactions.

2. Quite a considerable part of the counter-claim was for services and disbursements in a replevin suit between Olson and one Carlson and others. The plaintiff, against defendant's objection, was permitted to introduce in evidence three executions for costs issued in favor of Olson, and against the several defendants in that action, and which were all...