Brown v. Gurney

20 Minn. 527 | Minn. | 1874

By the Court.

Berry, J.

The principal contest in this case is upon the question, whether or not there was an express agreement for the payment, by plaintiff, of a percentage upon the goods and money furnished by defendants. As regards this question there is so much contradiction, as well as obscurity, in the testimony, that we are by no means able to say that the referee erred in his conclusion, that the goods were to be furnished at their “ reasonable value.”

In addition, it is to be observed that the findings of the referee are based, as he states, upon “the allegations of the pleadings, the admissions of the parties, and the proofs submitted,” and that the so-called bill of exceptions does not purport to contain the “ admissions” mentioned, even if it pui’ports to contain, (as plaintiff claims that it does not,) all the evidence bearing upon the question, whether the alleged agreement for percentage was ever consummated, or not.

In respect to the matter of interest, the referee finds that payment was to be made for the money furnished and the goods supplied, when the ties assigned by plaintiff to defendants, as security therefor, “ should be sold, and the proceeds realized therefrom.” For like reasons to those above given, we should not feel warranted in saying that this finding was •not supported by the facts appearing before the referee. And the effect is to show that the goods and money were furnished upon a credit, which did not expire until the ties were sold, and the proceeds of the sale received by defendants. If this were tbe case, in tbe absence of express agreement, tbe defendants were not, as they claim, entitled to interest upon tbe goods and money down to tbe time they were paid for by tbe sale of tbe ties, wbicb were in defendants’ bands and control.

Tbe testimony of plaintiff’s brother was admissible for tbe purpose, (if for no other,) of contradicting glanders. Whether or not a proper foundation was laid for its reception for this purpose, does not appear; but, at any rate, no objection seems to have been taken for want of such foundation.

It may be questionable whether plaintiff’s testimony as to the transaction between himself and Pratt was properly received ; but it is quite apparent, in view of the findings of the referee, that it was of no practical importance in the case.

Order denying a new trial affirmed.