| Minn. | Jul 2, 1889
The .decision upon a former appeal in this case is reported in 39 Minn. 546, (40 N W. Rep. 842.) The case now before us presents the proceedings at the second trial of the cause. The third assignment of error relates to the receiving of evidence that Julius Ende paid part of the money, received upon the certificate of deposit, to the undertaker for funeral expenses of his mother. If this was error, it was without prejudice, for the witness had testified to the same fact before the question was asked to which the objection was interposed; and the testimony thus given without objection was allowed to stand, no motion having been made to strike it out.
The offer to prove by the testimony of the plaintiff that, five or six days after the death of Pauline Ende, Julius Ende told the plaintiff that he claimed the certificate only as her “heir,” was rightfully excluded, for the reason, if for no other, that it was not offered to be shown, and it had not been shown, that at that time Julius held the certificate. If it had already been paid and taken up by the bank, the declaration of Julius thereafter made would come within the ordinary rule excluding hearsay evidence. He was neither a party to this action nor a witness at this trial. The certificate was shown to have been thus paid on the 11th day of January, 1886. It had not been shown when Mrs. Ende died, and so far as the case showed the
The evidence was sufficient to justify the finding that on the day prior to her death Mrs. Ende made a complete executed gift of the certificate to Julius. The original answer denying that Mrs. Ende was the owner of the certificate at the time of her death was suffi- ' cient to present the issue which was tried — that is, whether such a gift had been made. It is hence unnecessary to consider the error assigned in allowing an amendment of the answer after verdict. The other points in the case do not deserve particular mention.
Order affirmed.
The following opinion was filed on motion by plaintiff for a reargument.
Upon a re-examination of this case, after an application had been made for a reargument, it is discovered that we were in error when, in the opinion heretofore filed, it was said that the case did not disclose the time of the death of Mrs. Ende. That fact does appear, and it must be considered that the offer of evidence relates to a declaration of Julius Ende after he had acquired possession of the certificate of deposit and while he held it. But the offer was properly rejected, for the reason that it embraced matter not in disparagement of the title of the declarant, nor against his interest, and which, therefore, being only secondary or hearsay evidence, was not admissible. The offer was entire, and there was coupled with this proposed showing of the declaration in disparagement of title the further statement by Julius, that “ the reason the defendant would not pay the certificate was because they required him. to prove that he was the only heir of Pauline Ende, and he had not yet done so.” This was not within any exception to the rule excluding mere hearsay testimony. It is true that if this were a part of an entire conversation the adverse party might have brought it out on cross-examination.