95 Minn. 179 | Minn. | 1905
The complaint sets forth that plaintiff and defendant on March 6, 1902, had an accounting whereby there was determined to be due plaintiff from defendant $400, which amount defendant then and there agreed to pay, and no part of which has been paid except $4. ,, The answer denies that such an accounting was had, and by way of defense
1. In order to lay the foundation for the introduction of the alleged check supposed to be lost, plaintiff called defendant for cross-examination under the statute, and elicited from him the fact that all Of his checks drawn in favor of plaintiff covering the transaction at the time in question had been burned; and counsel for defendant asked the witness upon cross-examination to explain how the checks happened to be destroyed, whereupon the court sustained an objection that it was not a proper time for cross-examination. Subsequently the whole subject was gone into, and defendant had ample opportunity to make such explanation concerning the matter as he saw fit. It is the rule in this state that the method of examination by the opponent, when a party is called for cross-examination under the statute, is entirely within the discretion of the trial court. We find no ground for abuse of discretion on this occasion. While the court might very properly have permitted the witness at that time to explain his theory that the checks were- burned with the knowledge and consent of plaintiff, we find nothing in the record to indicate that the jury were prejudiced by the ruling. Jones v. Bradford, 79 Minn. 396, 82 N. W. 651, and Olson v. Aubolee, 92 Minn. 312, 99 N. W. 1128.
2. Many assignments of error are directed to the rulings of the court
3. It was conclusively established by the evidence that, although the parties agreed to submit their differences to arbitration, no agreement was arrived at, and no award reported by the arbitrators. Some of the errors assigned were directed to the rulings of the court upon offers of proof as to what took place between the arbitrators prior to the time of any final agreement. If the object of this line of evidence was to show that, by the conduct, admissions, or statements of the arbitrators, they had arrived at an award, it was clearly incompetent.- An award could only be proven by the'fact itself, and not by any admissions or statements which the arbitrators may have made during consultation. .It is clear that, although some of the arbitrators were of the opinion that not sufficient evidence had been introduced before them to make out a claim against defendant, yet in fact they agreed to disagree, and dropped the matter without making any final award.
4. It developed in the course of the trial that plaintiff and defendant were together at the time when defendant burned the checks which covered the critical period of their business relations. Plaintiff’s account of what occurred was that, on being asked by defendant what he did with his old checks, plaintiff replied that he generally checked them up with the stubs, and, if they compared, burned them, and that defendant then threw a bunch of checks into the fire.’ Defendant testified that after plaintiff had checked up their business transactions, and a settlement had been made, defendant asked plaintiff what he should do with the checks, to which plaintiff replied: “Do as I do. Burn them.” But it developed that defendant had also burned his check stubs. There being neither checks nor stubs in existence during the time the alleged $400 check was issued, the entire evidence on the part of defendant depended upon his statement that he had issued such a check, and, according to the testimony of some of the arbitrators,
The court instructed the jury upon this branch of the case that they should take into consideration the circumstances of the burning of the checks, and, if they were satisfied that defendant burned the checks 'for the purpose of preventing their being introduced in evidence, they would have a right to consider that fact, and, if they were satisfied that he had done so honestly, it would have no bearing against him. Thereupon counsel for defendant requested the court to instruct the jury that, should they find that plaintiff advised defendant to burn the checks, with the idea of destroying evidence, they should also consider that fact, whereupon the court said to the jury:
As counsel has called it to my attention, in order that you may thoroughly understand I will repeat to you the evidence on that point: Mr. Miller was at the house of Mr. Carnes, and Mr. Carnes had those checks there, and he asked Mr. Miller what he done under those circumstances. Miller' says, “I check them up and see that they are correct with the stubs, and, if I find them so, I burn up the checks.” But in this case the evidence shows both checks and stubs were burned, and there is no evidence here that that was the custom of Mr. Carnes either before or after. Mr. Carnes states that he done that in good faith. If he did, of course, he is not to be held responsible. If he did not, it is testimony against him.
'Conceding that the additional instruction amounted to a refusal to give the request, we do not think error was committed. In the first place, it was stipulated that 'the check which plaintiff received upon the date in question was for $4, and there was no evidence that plaintiff ,had received a $400 check, - except the statement of defendant as he recalled it; his checks and stubs having been burned. It was not seri
We find no errors in the rulings.
Order affirmed.