O'Riley v. Clampet
| Decision Date | 21 June 1893 |
| Parties | Thomas B. O'Riley v. Albert B. Clampet |
| Court | Minnesota Supreme Court |
Argued June 12, 1893.
Appeal by defendant, Albert B. Clampet, from an order of the Municipal Court of the City of Minneapolis, C. B. Elliott J., made January 17, 1892, denying his motion for a new trial.
The plaintiff, Thomas B. O'Riley, brought this action to recover of defendant $ 337, for excavating a cellar on lots seven (7) and eight (8) in block four (4) in Stillman's Addition to Minneapolis. Defendant owned the lots, and on November 1, 1890, conveyed them to Maurice a. Jones, for $ 5,000, and took back a mortgage the same day for the entire purchase price. On January 3, 1891, the deed and mortgage were recorded in the Registry of Deeds. On March 31, 1891 defendant assigned the mortgage to Henry P. Lyster, and on April 28, 1891, this assignment was also recorded. On January 19, 1891, plaintiff made a contract with Jones to excavate the earth for the cellar of a block of buildings Jones proposed to construct on these lots. Plaintiff commenced the work January 26, 1891. He soon after heard of the mortgage to defendant, and that Jones was insolvent. He stopped work, and claims he saw defendant and told him the circumstances, and that defendant then promised him to pay for the excavation if he would go on and complete the work, and would assign to defendant a doubtful claim he had for $ 114 for work on another lot in which defendant was interested. Plaintiff says he agreed to this, assigned the claim, and completed the excavation. He brought this action to recover of defendant the price. Defendant denied making the agreement. On the trial plaintiff was a witness, and testified to the agreement, and was allowed, over defendant's objection to prove defendant's ownership of the lots and the deed to Jones and the mortgage back for the purchase price. This is the testimony referred to in the assignments of error two three and four, and mentioned in the opinion. On his cross-examination plaintiff admitted that on May 14, 1891, he made, signed and verified a statement for a lien on the lots for this claim. It was marked Exhibit 3, but was not offered or admitted in evidence. The witness was then asked: "If you were not working for Jones, and did not consider Jones to owe you anything, why did you make Exhibit 3, and therein swear that you did the work for Jones and that Jones owed you thereon $ 337?" Plaintiff objected to the question, and the court ruled that he need not answer it. To this ruling defendant excepted. Plaintiff brought an...
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