Wetmore & Co. v. Thurman
| Decision Date | 16 May 1913 |
| Docket Number | Nos. 17,893-(58).,s. 17,893-(58). |
| Citation | 121 Minn. 352 |
| Parties | THEODORE WETMORE & COMPANY v. J. T. THURMAN and Others.<SMALL><SUP>1</SUP></SMALL> |
| Court | Minnesota Supreme Court |
Action in the district court for Hennepin county to recover $5,000. The case was tried before Steele, J., and a jury which returned a verdict in favor of defendants. From an order denying plaintiff's motion for judgment notwithstanding the verdict or for a new trial, it appealed. Order denying judgment affirmed and order denying new trial reversed.
Charles J. Tryon, for appellant.
Charles B. Elliott, Albert H. Hall, Roberts & Strong and J. E. Thwing, for respondents.
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 The transactions between the parties were conducted wholly by Theodore Wetmore, on the part of plaintiff, and by Joseph T. Thuran order denying its alternative motion for judgment notwithstand-they did not find it proven, to return a verdict for defendants. The jury returned a verdict for defendants, and plaintiff appeals from ing the verdict, or for a new trial.
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 and plaintiff elected to proceed upon the express contract. The
man, 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 Elev. Co. v. Syndicate Ins. 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. W. 913; Robbins v. Legg, 80 Minn. 419, 83 N. W. 379; Reeves v. Sawyer, 88 Minn. 218, 92 N. W. 962; Veum v. Sheeran, 88 Minn. 257, 92 N. W. 965. Aside from the well known rule excluding the conclusions and inferences of a witness, he cannot do indirectly what the statute prohibits him from doing directly.
At the trial plaintiff contended, not only that it made the sale of the property, but that, under its contract, it had the exclusive right to make such sale, and was entitled to its commission even if the...
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