Otto Gas Engine Works v. Knerr

• Citation: 7 N.D. 195,73 N.W. 87
• Parties: OTTO GAS ENGINE WORKS v. KNERR.
• Decision Date: 18 October 1897
• Court: United States State Supreme Court of North Dakota

7 N.D. 195

73 N.W. 87

OTTO GAS ENGINE WORKS

v.KNERR.¹

Supreme Court of North Dakota.

Oct. 18, 1897.

Syllabus by the Court.

1. In this case an issue of fact was joined, and the action was tried in the district court, without a jury, under section 5630 of the Revised Codes. At the trial the defendant offered to prove a certain state of facts orally, by witnesses produced by him. The offer and the evidence were objected to on various grounds, and the evidence was excluded by the court, and never taken down in writing or in any manner received or preserved upon the record. Held, that such rulings prevented a trial of the action below, within the spirit and meaning of said section of the Code, and that this court cannot consider or dispose of the case finally upon such a record. The evidence, whether admissible or not, under the rules of evidence, should have been taken down and brought upon the record and transmitted to this court for its consideration.

2. Held, further, that, while all evidence offered at a trial under said section must be preserved and brought upon the record, such section does not operate to abrogate the common-law rules of evidence. Such rules are in full force, and must be applied in the decision of such cases in the district court and in this court.

3. No trial being had below, within the meaning of said section, the judgment must be reversed, and the record remitted for further proceedings.

Appeal from district court, Cass county; William B. McConnell, Judge.

Action by the Otto Gas Engine Works against William A. Knerr to foreclose a chattel mortgage. From a judgment for plaintiff, defendant appeals. Reversed.

Smith Stimmel and Pollock & Scott (Newton & Smith, of counsel), for appellant. William C. Resser and Arthur B. Wright, for respondent.

WALLIN, J.

This is an action to foreclose a chattel mortgage upon an Otto gas engine. The mortgage was given by defendant to secure the payment of a promissory note made by the defendant, and payable to the firm of Schleicher, Schumm & Co., or to the order of that firm. The plaintiff is a corporation, and alleges in its complaint “that thereafter, and prior to its maturity, said note was, for value, transferred to this plaintiff, which has since been, and now is, the holder and owner thereof.” The complaint also states that the chattel mortgage in question was made and delivered of even date with the note, and that the same has been kept alive by a proper renewal thereof, and that the conditions of the mortgage had been broken by the nonpayment of the note. To this complaint defendant filed an answer, which in terms admitted the execution of the note and mortgage, and, by its silence, admits all the other averments contained in the complaint. The answer further embodied new matter by way of counterclaim, which, in the view we have taken of the record, need not be set out in detail. It will suffice to say that the answer avers, in substance, that said note was given for part of the purchase price of said Otto gas engine, which engine was sold by said firm of Schleicher, Schumm & Co. to the defendant; that said firm entered into certain warranties as to the construction and capacity of said engine, which warranties were broken; and that defendant was damaged thereby. To the new matter in the answer, plaintiff replied by a general denial. At the trial the plaintiff, under objection, introduced in evidence a deposition which is contained in the record, and from which it appears that the plaintiff purchased the note for value, before its maturity, and that, at the time of the purchase, the note was indorsed by the payee, and in due course delivered to the plaintiff, and that plaintiff received the note without notice of any defenses thereto. Upon this evidence, plaintiff rested its case. The defendant then offered certain depositions in evidence, which were received without objection, and which are embodied in the record. Defendant next offered in evidence the deposition of one Ames, which deposition, being objected to, was ruled out by the trial court, and does not appear in the record sent to this court. Defendant's counsel then offered orally to show certain specific facts by the deposition. This offer was objected to, and the objection was sustained. The defendant, who had been previously sworn as a witness, was then recalled to testify in defendant's behalf; whereupon defendant's counsel, without propounding a question to the witness, made a certain offer of testimony, in the following language: “I offer to prove by Mr. Knerr the same things stated in Mr. Ames' deposition, and for the same reasons, and further offered to show that defendant has been damaged in the sum of over three thousand four hundred and ten dollars, by reason of the engine not having the power that he claims it should have had under the purchase of this engine.” The defendant at the same time further offered to show, “by letter dated Philadelphia, October 5, 1894, addressed to Mr. Knerr, and signed by the Otto Gas Engine Works, per Frederick Berdan, secretary and treasurer, going to show that they had notice of the claims of Mr. Knerr for a defense in this action.” The defense also, at the same time, offered another letter from plaintiff to defendant, dated October 8th, and still another letter to defendant, written by Schleicher, Schumm & Co. All of the evidence so offered was objected to by plaintiff's counsel, for various reasons, which appear in the record. The objection was sustained, and the evidence excluded. The letters so offered appear in the record, but the oral testimony of the defendant does not and cannot appear in this record, for the obvious reason that such oral testimony was never given at all, nor was any part of it given or taken down in writing in the trial court, or in any manner preserved. Defendant's counsel next offered the depositions of two other witnesses with reference to the character of the engine in question. These depositions were excluded upon the same ground advanced by plaintiff as against the Ames deposition. Neither of these two last named depositions...