Theodore Wetmore & Co. v. Thurman
| Decision Date | 16 May 1913 |
| Citation | 141 N.W. 481,121 Minn. 352 |
| Parties | THEODORE WETMORE & CO. v. THURMAN et al. |
| Court | Minnesota Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Hennepin County; John H. Steele, Judge.
Action by Theodore Wetmore & Co. against J. T. Thurman and others. Verdict for defendants. From an order denying a motion for judgment notwithstanding the verdict or for a new trial, plaintiff appeals. Order denying motion for new trial reversed.
Syllabus by the Court
Where a party to an action is prohibited by the statute from testifying ‘of or concerning any conversation with’ a deceased party, he is equally prohibited from giving his conclusions or deductions drawn from such conversations.
Where it is admitted that plaintiff is entitled to compensation for services, and the controversy is as to whether the amount has been fixed by contract, and, if not so fixed, as to the reasonable value of such services, it at least would not be error to deny a motion that plaintiff be required to elect between the express contract and the quantum meruit, as it is desirable to settle the entire controversy at one trial. Charles J. Tryon, of Minneapolis, for appellant.
Roberts & Strong, of Minneapolis, for respondent Thwing.
Charles B. Elliott and Albert H. Hall, both of Minneapolis, for respondent Thurman.
Plaintiff is engaged in the business of selling real estate as agent for others, and claims to have effected a sale of the Holmes Hotel property in Minneapolis, then owned by defendants Joseph E. Thwing and Joseph T. Thurman, for the sum of $135,000, under an agreement made with Thurman and authorized and ratified by Thwing, whereby they gave plaintiff the exclusive right to sell the property, and promised to pay plaintiff, for its services, ‘all that said property should be sold for over and above the sum of $130,000.’ In its complaint, plaintiff alleges both an express contract to pay $5,000, for its services, and that such services were of the value of $5,000. In their answer, defendants deny any express contract, or any exclusive agency, but admit a sale of the property for $135,000, and allege that plaintiff, at their request, rendered services in making such sale, that the value of such services is no more than $500, and offer judgment for that amount, with costs.
After the service of the answer, and before the trial, Joseph T. Thurman died, and Margaret E. Thurman, as executrix of his estate, was duly substituted as a defendant in his place and stead. At the opening of the trial, on the motion of defendants and against the protest of plaintiff, the court required plaintiff to elect whether it would rely upon the express contract or upon the quantum meruit, and plaintiff elected to proceed upon the express contract. The court, in its charge, told the jury to return a verdict for plaintiff of $5,000, and interest, if they found the contract proven, and, if they did not find it proven, to return a verdict for defendants. The jury returned a verdict for defendants, and plaintiff appeals from an order denying its alternative motion for judgment notwithstanding the verdict or for a new trial.
[1] The transactions between the parties were conducted wholly by Theodore Wetmore, on the part of plaintiff, and by Joseph T. Thurman, on the part of defendants. Defendant Thwing testifies that he had no talk with Wetmore, and that he received all his information concerning the transactions of Wetmore, and the agreement or arrangement with him, from Thurman.
Section 4663, R. L. 1905, provides that: ‘It shall not be competent for any party to an action, or any person interested in the event thereof, to give evidence therein of or concerning any conversation with, or admission of, a deceased or insane party or person relative to any matter at issue between the parties.’
Although defendant Thwing, while testifying, was not permitted to give the conversations between himself and Thurman, he was repeatedly permitted to state the knowledge that he acquired, or the understanding, inference, or conclusion that he formed, from these conversations.
The statute prohibits any party to an action from giving evidence ‘of or concerning any conversation with’ a deceased party or person; and giving the import of such a conversation, or the result thereof, or statements or objections that were not made, or deductions or conclusions drawn from the conversation, is equally prohibited. Farmers' Union Elevator Co. v. Syndicate Insurance Co., 40 Minn. 152, 41 N. W. 547;Redding v. Godwin, 44 Minn. 355, 46 N. W. 563;Madson v. Madson, 69 Minn. 37, 71 N. W. 824;Babcock v. Murray, 69 Minn. 199, 71 N....
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