Thaden v. Bagan
| Decision Date | 21 December 1917 |
| Docket Number | No. 20454.,20454. |
| Citation | 165 N.W. 864,139 Minn. 46 |
| Parties | THADEN v. BAGAN et al. |
| Court | Minnesota Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Freeborn County; Nathan Kingsley and S. D. Catherwood, Judges.
Action by George H. Thaden against Francis Bagan and others. Verdict for plaintiff, and from an order denying their motion for a new trial, defendants appeal. Order reversed.
The evidence sustains a finding of the jury that the plaintiff effected a sale of land of the defendants' intestate under an agreement with him whereby he was to have for his compensation all in excess of a stated selling price.
The widow of the deceased was not precluded from testifying by Gen. St. 1913, § 8375(1), which provides that a wife shall not be examined for or against her husband without his consent; nor was she prevented by Gen. St. 1913, § 8378, which provides that a party to an action or one interested in the event of it shall not testify to a conversation or admission of the deceased, from testifying to a conversation between the plaintiff and herself in the presence of the deceased who did not participate therein, but to make error in the exclusion of such testimony available it was necessary that the plaintiff make an offer of proof showing its materiality.
The omission of the plaintiff to list for taxation as a credit his claim for compensation as required by Gen. St. 1913, § 2316 et seq., was proper to be shown as an admission against the validity of it.
The defendants might show such omission by the tax lists or they might take the statement of the defendant as to the fact when on the stand, and neither the provision of the tax law, Gen. St. 1913, § 2320, prohibiting a disclosure of the lists by the tax officers ‘except by order of court,’ nor the provision of Gen. St. 1913, § 8375(5), prohibiting public officers from disclosing communications made to them in official confidence when the public interest would suffer from such disclosure, gives a privilege against disclosure.
Considering the nature of the case and the character of the evidence upon which the parties necessarily relied, it is held that the exclusion of proof as to the listing was prejudicial. John F. D. Meighen and Bennett O. Knudson, both of Albert Lea, and Moonan & Moonan, of Waseca, for appellants.
Dunn & Carlson, of Albert Lea, and John McCook, of Cresco, Iowa, for respondent.
This is an action to recover compensation for the sale of farm lands belonging at the time to Thomas F. Bagan, now deceased, and was tried in the district court on appeal from the probate court. The defendants are Bagan's administrators. There was a verdict for the plaintiff and the defendants appeal from the order denying their motion for a new trial.
[1] 1. On December 5, 1910, Bagan listed with the plaintiff for sale 600 acres of land in Fillmore county at the net price to him of $60 per acre, the plaintiff to have for his compensation all in excess. The listing was exclusive for one month. If he did not sell within that time he earned nothing. He did not make a sale within the month. He claims that Bagan orally extended the time within which a sale might be made upon the terms of compensation contained in the listing agreement. A sale was made in March, 1911, to one A. W. Schild, at $65 per acre, upon terms of payment satisfactory to Bagan. It is not in dispute that the plaintiff effected the sale and he claims that in doing so he earned under the contract $5 per acre. Bagan died on November 18, 1914. The statute precluded the plaintiff from testifying the to conversations with him relative to an extension. There was testimony of those who heard conversations between the two or admissions of Bagan having a tendency to establish plaintiff's contention. Some of it was quite direct. The defendants offered testimony tending to show that there was no extension of the terms of the listing agreement and that when the sale was made Bagan was to have the whole selling price, the plaintiff's activity in making the sale being explained by the fact that he had an arrangement with Schild whereby he took over his Kansas land, and disposed of it, so that in effect Schild got the Minnesota land in exchange subject to mortgage payments, and in such transaction received compensation or profit for his services. There was evidence for and against the plaintiff's contention and the evidence sustains the verdict.
[2] 2. The defendants called as a witness Mrs. Bagan, the wife of the deceased, and proposed to show conversations between her and the plaintiff. These conversations were in the presence of the deceased but he did not participate in them. The court was of the opinion that the proposed testimony offended G. S. 1913, § 8375(1), which provides that a wife cannot be examined for or against her husband without his consent, and G. S. 1913, § 8378, which provides that it shall not be competent for a party to an action or one interested in the event of it to give evidence of a conversation or admission of a deceased person relative to a matter in issue, and sustained the plaintiff's objections. That such testimony would not violate section 8375(1) is clear. 1 Wigmore on Evidence, § 610, and cases. It is also clear that it would not violate section 8378. It was not sought to show a conversation or admission of the decedent, which Mrs. Bagan overheard, but a conversation between Mrs. Bagan and the plaintiff which perhaps the decedent overheard but which if otherwise competent was competent though he did. Later in the trial, the court was of the opinion that it was in error in the view it took of section 8375, and so stated to counsel, but adhered to its view that the testimony offended section 8378. Counsel for defendants when the question first arose stated that he would like to make an offer of proof and there was some talk about putting it in writing, but nothing was done at the time or later. The long-settled rule is that there must be an offer showing the materiality of proffered testimony unless it otherwise appears or is presumptively material. Dunnell's Minn. Dig. & Supp. § 9717, and cases. It was appreciated by counsel but not observed. The rule is not narrowly construed. There may be cases where a ruling upon the single question of competency may be reviewed without an explicit offer of proof. The record is a little confused, but it does not present that precise question nor such a case. The making of an offer was deferred and was not again taken up. The court left it open for further determination. There should have been an offer showing the materiality of what the defendants were prepared to prove and without it there is no reviewable error.
[3] 3. Plaintiff's cause of action accrued in March, 1911. His claim was for $3,000 and interest. It was a ‘credit’ which was required to be listed by the plaintiff by the tax law. G. S. 1913, § 2316 et seq. The...
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... ... Kinsberg, (S. D.) 166 N.W ... 643; Mathews v. Livingston, (Conn.) 85 A. 529; ... Tanner v. Hinson, (Ga.) 92 S.E. 1005; Thaden v ... Bagan, (Minn.) 165 N.W. 864; Feldman v. McGuire, ... (Ore.) 55 P. 872; Rudolph v. Ins. Co., (N. Y.) 167 N.E ... The ... Court ... ...
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