58 Minn. 91 | Minn. | 1894
Plaintiff brought this action to recover on a promissory note of which he was payee. Its execution and delivery was.
Counsel for defendant have made three assignments of error: First, that the trial court erred in holding all of the evidence adduced upon the part of their client to be immaterial; second, in failing to pass upon the counterclaim set up by him, and in failing to consider the evidence submitted in support thereof; and, third, in ordering judgment for plaintiff when it had found as a fact that he was wrongfully in possession of defendant’s shares of stock in the corporation.
With reference to these assignments it may be said that the court below did not hold, as stated in the first, that all of the evidence adduced on defendant’s part was immaterial. Evidently it considered and relied, when making its findings, upon a portion of the testimony presented by the defendant. As to the third assignment, it is predicated upon the unfounded assumption that the court found as a fact that plaintiff was wrongfully in possession of defendant’s stock shares. The court did not find, in effect or otherwise, that plaintiff’s possession of the shares was wrongful. It simply found that when the action was commenced plaintiff held the stock certificate in his custody, and that as against him defendant was entitled to possession. This is not equivalent to finding plaintiff’s possession to have been wrongful, as counsel seem to think. And if the counterclaim referred to in the second assignment of error
Under the allegations of the answer the defendant could have shown a contemporaneous written agreement between these parties of the purport stated in the pleading, and therefore plaintiff was compelled to reply, for no other course was open to him. Counsel for defendant are therefore wrong in their contention that by joining issue on the affirmative allegations of the answer the plaintiff waived his right to object to an accounting between the parties, and that the case stood precisely as though it was an action brought for that sole purpose. And they are again wrong when contending that, having presented to the court by their evidence the entire matter in dispute, and gone into the affairs of the corporation, the plaintiff must now submit to its being passed upon, and its effect determined; for at all times and at every opportunity during the trial plaintiff’s counsel objected to the reception of evidence whereby defendant attempted to show the condition of the business affairs of the corporation, what profits had been made, and what of these profits belonged to the defendant; and at the trial there was no proof of any contract between plaintiff and defendant, verbal or in writing, of the nature set out in the answer. The defendant .made no attempt to show the existence in writing of such a contract, and, although improperly given the opportunity, utterly failed to show any verbal agreement of the character pleaded. It is manifest, and we do not understand defendant’s counsel to claim to the contrary, that their Exhibit 1 did not tend to establish the allegations of the answer. In fact the entire effort on the part of defendant at the trial, as we gather from an examination of a very voluminous record, was to show that his share of the profits in the business of the corporation exceeded the amount of the note, the contention being that they did, and for that reason it was incumbent upon plaintiff to cancel and surrender the same. In the absenec of evidence tending to establish the making in writing of a contemporaneous agreement to the effect that the note was to be held until such profits equaled the amount thereof, and that they were then to be applied in satisfac
Order affirmed.
(Opinion published 59 N. W. 974.)