Wood v. Cullen

• Citation: 13 Minn. 365
• Parties: ALEXANDER WOOD v. WILLIAM J. CULLEN, impleaded, etc.
• Decision Date: 01 January 1868
• Court: Minnesota Supreme Court

13 Minn. 365

ALEXANDER WOOD

v. WILLIAM J. CULLEN, impleaded, etc.

Supreme Court of Minnesota.

Appeal by the defendant Cullen from a judgment of the district court, Rice county.

Geo. L. Otis, for appellant.

W. P. Warner, of counsel for respondent.

BERRY, J.

This action is brought against William J. Cullen, sole appellant, and others, alleged to have been associated together in town-site speculations, and doing business under the common name of "The Watonwan & Desmoins Land Company." The plaintiff seeks to recover compensation for services rendered by him under a written agreement, which by its terms was entered into "between Alexander Wood, * * * party of the first, and John B. Fish, * * * as agent of the Watonwan & Desmoins Land Company, party of the second part," and which sets forth, among other things, "that the said John B. Fish, as the said agent, has this day appointed the said Alexander Wood agent of the said Watonwan & Desmoins Land Company," and at a specified salary. The agreement is signed "Alexander Wood, John B. Fish, as agent for the Watonwan & Desmoins Land Company," and is under seal. Evidence was introduced by the plaintiff tending to show that certain of the defendants, perhaps all except Cullen, signed an instrument in writing agreeing to take the number of shares set opposite their names respectively, in "The Watonwan & Desmoins Land Company;" that the business of said company was the purchase of lands and location of town sites, and that by the instrument Fish was appointed an agent for the purpose of carrying out the objects of the association. There was also evidence tending to show that the members of the company and Cullen ratified and approved of the agreement made by Fish with the plaintiff. It did not appear that Cullen signed the instrument spoken of, but there was evidence tending to show that he took part in the formation of the company, and in the conduct of its business, as perhaps a dormant partner. Secondary evidence of the contents of the instrument referred to was received, and one question which arises is whether a proper foundation was laid for its reception. It was not shown to be lost or destroyed, but there was evidence tending to show that it was in the hands of one of two of the defendants residing out of this state. It did not, however, appear that any attempt had been made to procure it, except that one of the plaintiff's witnesses, who was also a signer of the instrument, had asked for it, and had not been able to "get hold" of it. The plaintiff himself had made no attempt to obtain it. He had not taken, nor attempted to take, the deposition of the persons to whose hands it was traced, nor had he given notice to the defendants, or any of them, to produce it upon the trial. We are of opinion, therefore, that no proper foundation was laid for the reception of secondary evidence of its contents. The fact that one or both of the persons to whose possession it was last traced resided out of the state, did not excuse from diligent effort to procure it. Turner v. Yates, 16 How. (U. S.) 26; 5 Day, 286.

It is said that as it is not claimed that Cullen signed the instrument referred to, but he is connected, if connected at all, with the company by acts in pais tending to show that he was a dormant partner; that therefore the reception of secondary evidence of the contents of the instrument could not prejudice him. But to this we do not assent, for to say nothing about the effect of this evidence in other respects, it certainly was important in establishing the agency of Fish, who made the contract with the plaintiff upon which this action is founded. For the error in receiving this secondary evidence the judgment must be reversed. This conclusion would dispose of this case so far as the present appeal is concerned, but several other matters were argued at bar which we deem it proper to consider...