49 Minn. 344 | Minn. | 1892
Lead Opinion
There was no error in the ruling of the trial court when admitting in evidence the statements and representations alleged to have been made by defendant in the' summer of 1889 to the employe of a commercial agency, when he called upon him for the expressed and avowed purpose of inquiring into the affairs of the New York Pie Company, and learning, for the use of the patrons of the agency, who the person engaged in business under that name was, his financial standing, and pecuniary responsibility.
Testimony as to what defendant then stated was properly received as in the nature of admissions by defendant that he was the company, as plaintiff asserted. But the court below went a step further than this. The employe made a full report in writing of his interview with defendant, and this was duly placed on file at headquarters, for use should any of the patrons of the agency, among whom were plaintiff bank and Thompson, the payee and indorser of the notes in dispute, call for a report on the Pie Company.
Plaintiff did not call for a report, but Thompson did, the same being furnished in writing some few months prior to the execution and delivery of the notes to him, and in this report there was embodied, evidently, the substance of the testimony referred to as in the nature of admissions of the defendant. The report so furnished had been lost, but, against objection, plaintiff was permitted to prove its contents by Thompson, and also to show by him that before the notes were turned over to the bank he had informed its cashier, Gould, of the nature and contents of said report. Later, upon the examination of the cashier as a witness, and also under objection, he was allowed to testify that before receiving the notes he had been informed by Thompson of the nature and contents of the report from the agency, and believed and relied upon it when accepting them. This class of testimony should have been excluded as immaterial and incompetent. It was admitted, undoubtedly, with a view to creating an
(As testimony which might have entitled Thompson to claim an estoppel as against the defendant was immaterial on the trial of this action, it should not have been received; and, as plaintiff bank was not a patron to whom, as such, the commercial agency had made a report containing or based upon statements or representations made by defendant in respect to the business affairs of the pie company and his connection with it, the testimony as to the communication of the contents of the commercial report to the cashier by Thompson should have been held inadmissible.)
Order reversed.
Rehearing
ON REHEARING.
April 25, 1892.
Upon filing a petition for a rehearing in the above case it is argued that, as plaintiff corporation is entitled to the benefit of any estoppel which can be claimed by Thompson as against Ludlum, it was competent and material for it to show on the trial that Thompson called for, received, and, when taking the notes in question, relied upon, the report from the commercial agency; and to show the contents of the report. This view was not alluded to in the brief or upon the oral argument heretofore made by counsel, and did not occur to the writer of the foregoing opinion, although suggested in Hodge v. Ludlum, 45 Minn. 290, (47 N. W. Rep. 805.) The correctness of the position now taken with reference to testimony as to the report received and relied on by Thompson cannot well be questioned, for the doctrine of privity has an assured place in the law of equitable estoppel, and the last paragraph in the foregoing opinion should be expunged. But we adhere to the views already expressed concerning the testimony of Thompson and the cashier Gould as to what was told the latter by the former in regard to the report from the agency.
Motion for reargument denied, as the result would be unchanged.