Smith v. Glover

• Citation: 56 N.W. 168,54 Minn. 419
• Parties: James A. Smith et al. v. John E. Glover
• Decision Date: 17 August 1893
• Court: Supreme Court of Minnesota (US)

56 N.W. 168

54 Minn. 419

James A. Smith et al. v. John E. Glover

Supreme Court of Minnesota

August 17, 1893

Argued July 7, 1893.

Appeal by plaintiffs, James A. Smith and R. C. Libbey, from an order of the District Court of Ramsey County, Chas. E. Otis, J made March 18, 1893, denying their application for a retrial.

On a former appeal in this action, reported Smith v Glover, 50 Minn. 58, this court determined the legal rules controlling it, and their application to the established facts. For a statement of those facts reference is made to that report. On the former trial certain evidence was improperly excluded which bore upon the question whether all rights under the contract with Page and Pereles had been abandoned. Because of that error the question of such abandonment was ordered retried, this court saying:

"As we have seen, there was error in excluding evidence offered on the issue of abandonment. As to all the other issues the cause was properly tried and decided. As the issue of abandonment is independent of the other issues in the case and may be adequately tried without reference to such other issues, we order a new trial as to that issue only; and if, on such trial, it shall be found that plaintiffs did abandon their rights under the contract, then the court below will render judgment for the defendant; but if it be found that they did not abandon such rights, then it will cause judgment to be entered for the plaintiffs as by it directed on the trial already had."

Such retrial was had on November 9, 1892, and subsequent days. Over six hundred printed pages of evidence and exhibits were submitted. The court found that plaintiffs who succeeded to the rights of Glover and McClure under the contract had wholly abandoned all those rights prior to 1879, and had made no move to regain them until 1889, and directed judgment for defendant. The plaintiffs moved for a new trial, but were denied. No legal question was involved or discussed on this retrial. The relevant evidence presented a great number of minor and collateral facts, bearing upon the ultimate fact of abandonment. The trial court held that indifference, inattention and nonaction on the part of the plaintiffs for a continuous and unbroken period of over ten years was evidence of such abandonment. No benefit would be derived from a statement of the details, as found by the court, or as discussed in the briefs of counsel.

Order affirmed.

Stringer & Seymour and Jno. M. Gillman, for appellants, cited Schriber v. Le Clair, 66 Wis. 579, and Honore v. Hutchins, 8 Bush, (Ky.) 687.

Warner, Richardson & Lawrence, for respondent.

OPINION

Collins, J.

This case has been twice before this court, and may be found reported in 44 Minn. 260, (46 N.W. 406,) and 50 Minn. 58, (52 N.W. 210, 912.) On the...