Zarneke v. Kitzman
| Decision Date | 16 July 1921 |
| Docket Number | 4881 |
| Citation | 183 N.W. 867,44 S.D. 295 |
| Parties | A. V. ZARNEKE, and E. T. Fryer, Plaintiffs and appellants, v. MIKE KITZMAN, Defendant and respondent. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Spink County, SD
#4881--Affirmed
Null & Royhl
Attorneys for Appellants.
Moriarty & Erwin
Attorneys for Respondent.
Opinion filed July 16, 1921
Appeal from an order granting defendant a new trial upon the ground of newly discovered evidence. No other errors are assigned, and the record contains only such matters as are technically material to a review of the order.
The action was to recover commissions for the alleged sale of 640 acres of land owned by defendant, which plaintiffs claim was listed with them, on the following terms, namely: Price, $65 per acre; $2,500 cash upon execution of a contract of sale; $7,500 to be paid March 1, 1920, balance in 10 years from March 1, 1920, with interest at 6 per cent. per annum. Plaintiffs allege that they sold the land for $80 per acre to one Philip Baker, who executed a written contract evidencing the sale, and paid $3,200 cash, and that the terms of the sale were in accordance with the terms prescribed in the listing contract. Defendant's answer admits that he listed the land with plaintiffs for sale, but denies that the terms of sale were as claimed by plaintiffs, and alleges that the listing was specifically limited to a period ending July 1, 1920, and denies that plaintiffs made any sale of the land prior to July 1st.
At the trial the plaintiff Zarneke testified that the day the land was sold to Baker he wrote out a telegram to defendant, dated June 23d, and took it down to the depot, to wire that they had sold his land to Baker; that he could not send the wire because of a telegraphers' strike; that he put the written telegram in a telegraph envelope, addressed it to defendant, and mailed it on the passenger train; that he received a reply the 25th or 26th of June in which defendant Kitzman told him it was impossible for him to leave before the 4th of July, but that he would be there the first of the following week; that on June 30th he again wrote defendant Kitzman notifying him that he had deposited the money for the first payment to his credit at the State Bank of Doland, and asked him to come up and close the deal; that Kitzman came up the 8th or 9th of July.
Defendant Kitzman, called by plaintiffs as an adverse witness, testified that he did not have the letter of June 23d, had given it to his attorney, and did not know what had become of it; that he had searched for it everywhere, but was unable to find it; that he knew its contents; that it was received through the mail; that it was in substance:
Both Zarneke and Fryer were witnesses at the trial, but neither was interrogated as to the contents of the telegram letter of June 23d. At the time of the trial, the letter had been lost or mislaid by defendant's counsel, and could not be produced.
Upon the motion for a new trial, Mr. Moriarty, defendant's counsel, presented an affidavit stating, in substance, that during the trial he had made diligent search through the files of his office for the letter, but was unable to find it; that after the trial he discovered it among the papers and files in another case; that the letter attached to his affidavit is the original letter handed to him by the defendant Kitzman, and will be identified as such by Mr. Kitzman; that the letter was dated June 23d, and reads as follows:
The record before us discloses that no sale was consummated because of a controversy between plaintiffs and defendant Kitzman over the terms of the listing contract, plaintiffs claiming that it provided a cash payment of $2,500 upon the execution of the contract and a further cash payment of $7,500 on the following March 1st, while defendant insisted he was to receive a cash payment of $10,000 upon consummation of the sale.
At the trial, over defendant's objections, plaintiffs were permitted to give oral testimony as to the commission to be paid and the terms and conditions of the listing contract, and also oral testimony that they had advised Kitzman. by the telegram letter of June 23d and another letter of June 30th that they had sold his land to Baker upon the terms specified in the listing contract. Defendant denied the sale, and denied having received the latter communication.
Appellants' contention is that the telegram letter of June 23d is not material evidence, being cumulative; that it is not sufficiently strong and of such a decisive character as to render a different result reasonably certain; that the only claim that can be made is that it tends to impeach Zarneke and corroborate the defendant; that there was not such showing of diligence in respect to the letter as would warrant the granting of a new trial.
We are of the view that the evidence is material. The plaintiffs themselves stamped the letter as material evidence in the case when they called defendant as an adverse witness to produce it, and in its absence were permitted to show contents by secondary or oral evidence of defendant, and the plaintiff Zarneke was also permitted to testify to its contents as materially different in probative effect. Defendant's answer denied the alleged sale to Baker.
Plaintiffs' right to recover depended wholly upon the claim that on June 23d they had sold the land to Baker for $80 per acre, and were entitled to recover as commission $15 per acre, the excess over the list price. The complaint contains no allegation which would sustain a recovery upon any other theory. There was a direct conflict in the evidence as to the contents of the letter. The letter itself would tend to rebut the evidence of Zarneke to the effect that they had sold the land to Baker, and is not strictly impeaching evidence, though it may indirectly have that effect. Sluman v. Dolan, 123 N.W. 72; Kellogg v. Finn, 119 N.W. 545, 133 AmStRep 945, 18 AnnCas 363; Sioux Falls Stockyards Co. v. Ash, 177 N.W. 761.
...
To continue reading
Request your trial