Presley v. Lowry

• Decision Date: 29 June 1878
• Parties: Bartlett Presley and another v. Thomas Lowry and another
• Court: Minnesota Supreme Court

25 Minn. 114

Bartlett Presley and another v. Thomas Lowry and another

Supreme Court of Minnesota

June 29, 1878

Appeal by defendant Lowry from an order of the district court for Ramsey county, Simons, J., presiding, refusing a new trial.

Order reversed, and new trial directed.

C. K Davis, for appellant.

W. P Warner, for respondents.

OPINION

Berry J.

It is alleged in the complaint that the plaintiffs, in July, 1872 docketed, in the county of Hennepin, a judgment in their favor against one Erickson, for $ 2,393.63, which thereupon became a lien upon certain real estate of which Erickson was owner; that in April, 1874, defendant Lowry, and Erickson, made an agreement, by the terms of which Erickson, on the one hand, was to convey said real estate to Lowry, or to such person as he might designate, subject to all incumbrances thereon; and, on the other hand, Lowry, as part of the consideration of such conveyance, was to pay the judgment aforesaid, and cause the same to be satisfied; that Erickson thereupon conveyed the real estate pursuant to the agreement, and Lowry promised to pay the judgment and cause the same to be satisfied, but has failed to perform his promise. The allegations as to the agreement upon Lowry's part are denied in the answer.

The issue thus raised as to the promise alleged to have been made by Lowry was the most important issue in the case, and the testimony bearing upon it was conflicting and contradictory. The testimony introduced by the plaintiffs went to show that Lowry made the promise; that introduced by the defendants, that he never made it. Erickson, having been called as a witness by the plaintiffs, was asked what Lowry said to him about Presley, at the time when he (Erickson) made the conveyance to Lowry. His answer was to the effect that Lowry wanted him to ask Presley if he would like to settle the judgment; that he told him to go to Presley and try to settle it, and if he did not succeed, to tell Presley to come to Minneapolis, (where Lowry lived,) and he (Lowry) would trade real estate for the judgment, and the witness added, "I went down to Presley, and told him to go up there." On being asked to repeat the "talk" between him and Lowry, the witness proceeded, in substance, as follows, viz.: "He (Lowry) told me to go down to Presley, and tell him to come up there and settle with him for the judgment, and I did so." The plaintiff Kemp, having testified that Presley and himself were partners, that he learned from Erickson that he had sold...