Swanson v. Andrus
| Decision Date | 13 December 1901 |
| Docket Number | 12,697 - (112) [2] |
| Citation | 88 N.W. 252,84 Minn. 168 |
| Parties | CHARLES J. SWANSON v. JOHN E. ANDRUS |
| Court | Minnesota Supreme Court |
Original Opinion Filed, On Motion to Dismiss October 11, 1901
Reduction of Verdict or New Trial -- Appeal.
An order granting the defendant's motion for a new trial unless the plaintiff, within a limited time, files an agreement remitting a part of his verdict, but denying the motion if such condition is complied with, does not, as to the defendant, become final, and therefore an appealable order, unless and until the plaintiff complies with the condition within the time limited.
Reduction of Verdict or New Trial -- Notice of Order.
Written notice of the making of such order cannot be served on the defendant, so as to limit his right of appeal, until the order becomes one denying his motion for a new trial by reason of the performance of the condition by the plaintiff.
On Appeal, December 13, 1901.
Credibility of Witness -- Evidence.
Evidence offered for the purpose of affecting the credibility of a witness must, except when coming from the witness himself on cross-examination, be confined to proof of his general reputation for truth and veracity in the place of his present or recent residence.
Ruling of Court -- Instruction to Jury.
A ruling of the trial court striking out the statement of a witness because a conclusion, and not the statement of an evidentiary fact, and an instruction to the jury that certain agents of defendant had authority from him to enter into the contract involved in the action, considered, and held not erroneous.
On appeal the following opinion was filed December 13, 1901:
Petition on Rehearing
This action was brought to recover money expended in preparing to perform a contract to do the fireproofing work on defendant's building; also the profits plaintiff might have made had he been permitted to perform the contract. A former appeal is reported in 83 Minn. 505, 86 N.W. 465. The facts are there very clearly outlined and stated, but for a clear understanding of the questions presented for consideration at this time a brief statement thereof is deemed necessary.
Defendant was the owner of a building situated in the city of Minneapolis, known as the "Andrus Building." In October, 1898, he decided to remodel and rebuild the same, making it eight stories high. His plans called for six floors above the second, and partitions in five of the stories above the second were to be fireproof. Proposals for doing the fireproofing work were invited, and one from plaintiff was the only one considered. Negotiations were had between Thorpe Bros., representing defendant, and his architect, Long, which resulted in a contract by which plaintiff was to do such work for the sum of $19,500. The contract was made and entered into on the part of defendant by Thorpe Bros., acting as his agents. Subsequently, acting under the said contract, plaintiff made preparations, including the manufacture of tiles, to fulfil the contract; but on May 18, 1899, he was ordered out of the building by Thorpe Bros., acting as agents for defendant, and they repudiated the contract, and refused to permit him to perform it.
This action was brought to recover the money expended in preparation for the performance of the contract, and for the profits which plaintiff might have made if he had been permitted to fulfil the same. After making the contract with plaintiff, defendant changed his plans by adding two more stories to the building, making it ten, instead of eight, stories high. Plaintiff claimed on the trial of the action to be entitled to recover the profits he might have made, not only from a performance of the contract as to the six stories, but as to the additional stories added by defendant after plaintiff had been prevented from performing the same as well.
When the case was here before it came up on plaintiff's appeal, the trial court having held that the plaintiff was not entitled to profits as to the two additional stories. We sustained the contention of defendant in this respect, holding that plaintiff was entitled to recover the money expended by him in preparing to perform the contract, and also the profits he might have made had he completed his contract as to the six stories, but that he was entitled to nothing as to the two stories added after his contract was repudiated by defendant.
The cause was remanded, and is now before us on defendant's appeal. Three questions are presented for decision and determination:
1. Whether the trial court erred in striking out certain evidence offered by the defendant.
2. Whether the court erred in refusing to permit a witness on behalf of defendant to testify that plaintiff had offered to pay the architect one thousand dollars if he would aid him in securing the contract from defendant.
3. Whether the court erred in instructing the jury that the agents, Thorpe Bros., had authority from defendant to enter into the contract in his behalf.
1. Witness Long, in the course of his testimony concerning the negotiations between himself and plaintiff relative to the contract, made the statement:
A motion was made to strike out the words "we hadn't definitely settled" as not responsive to any question, and as a conclusion on the part of the witness. The court granted the motion, and the ruling is assigned as error. The court was clearly right in striking out the statement of the witness referred to. It was a mere conclusion of the witness, and not the statement of an evidentiary fact. The question whether the parties had definitely settled upon the terms and conditions of the contract was for the jury to determine, and not for the witness.
2. It is also contended by appellant that the court erred in excluding his offer to show by witness Long, the architect, that during the negotiations between the parties, and while plaintiff was endeavoring to secure the contract, he offered Long one thousand dollars if he would assist him in getting the contract. This evidence was offered by defendant as a part of his case in chief, not as impeaching testimony, but as affirmative proof, and for the purpose of affecting plaintiff's credibility as a witness. When plaintiff was on the stand in his own behalf, a question was put to him by defendant's counsel on cross-examination embodying this identical matter. It was objected to by plaintiff, but the court overruled the objection, and held that the question was proper, as tending to affect the credibility and truthfulness of plaintiff as a witness. Upon the ruling being made, defendant withdrew the question, and nothing further seems to have been said about it until the question was asked of the witness Long when called as a witness by defendant.
The court below was right. It may be conceded that the question to plaintiff on cross-examination was proper, but...
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