Fredin v. Richards
66 Minn. 46
Minn.
1896
Check Treatment
PER CURIAM.2

It was held upon the former appeal in this case (see 61 Minn. 490, 63 N. W. 1031) that the facts alleged in the first count of the complaint did not state a cause of action, but that the second count did, and a new trial was granted on the second count. The second trial resulted in a verdict for the plaintiffs, and the defendants appealed from an order denying their motion for a new trial.

One of the material issues on the trial was whether the money and notes described in the complaint belonged to the defendants, of were the property of the several banks named in the notes as payees. The right of the plaintiffs to recover depended upon the proposition that such money and notes were in fact the property of the defendants. The claim of the defendants was that they were loan brokers, and *48loaned the money in question, and took the notes therefor, payable to the banks as such brokers, and that they never had any interest in the money or notes, but that they were at all times the property of the banks. This issue was sharply contested on the trial, and the defendants, in support of their claim, offered in evidence conversations between one of the defendants and the officers of the banks, and certain correspondence between the defendants and the banks, tending to show that the defendants had an arrangement with the banks whereby they were to make investments for the banks, and that the money in question was loaned and the notes were taken pursuant to such arrangement. The rejection of this evidence by the trial court is assigned as error.

The rule is settled, as claimed by counsel for the plaintiffs, that, in general, in order to confirm the testimony of a party, evidence is not admissible to prove his previous declarations out of court in his own favor. Griffin v. Bristle, 39 Minn. 456, 40 N. W. 523; Whitney v. Houghton, 125 Mass. 451. But this rule has no application to this case, for the evidence offered was original evidence, tending to prove a fact relevant and material to the issue, and to rebut evidence given by the plaintiffs tending to establish their claim that the money loaned and the notes belonged to the defendants. In an action between the defendants and the banks involving the same issue, there could be no question as to the competency and materiality of the evidence offered by the defendants. In such a case the only way to prove to whom the money and notes belonged would be to show the conversations, correspondence, and acts of the parties in the premises. Now, because the issue happens to be between a third party, the plaintiffs, and the defendants, the rule of evidence is not changed. The same relevant and material fact may be proved in each case by the same evidence. Schmidt v. Baumann, 36 Minn. 189, 30 N. W. 765; Lewis v. Havens, 40 Conn. 363; Fuller v. Wilder, 61 Me. 525; Regan v. Dickinson, 105 Mass. 112.

The trial court erred in rejecting so much of the offered evidence as tended to show that the defendants had an arrangement with the banks to loan their money for them, and that the money and notes in question were loaned and taken pursuant to such arrangement. The evidence actually received on this issue did not render the error harmless, and for this error a new trial must be had.

*49This renders it unnecessary to consider any other of the assignments of error, except, in view of another trial, to say that the trial court, upon the evidence, submitted the proper rule of damages to the jury.

Order reversed, and a new trial granted.

Mitchell, J., took no part