18 Minn. 316 | Minn. | 1872
By the Court.
This is an action brought by the plaintiff to recover back the sum of $5,000, money paid to the defendants, and four certain promissory notes executed and delivered by the plaintiff to the defendants, upon certain representations made by defendants which the plaintiff claims to have been false and fraudulent.
The complaint alleges: that on the 26th of September, 1864, at Fort Wadsworth, Dakota Territory, and long afterwards, the plaintiff and one Mark W. Downie, were partners doing-business under the firm name of “ M. W. Downie & Co.,” and the defendants J. E. Thompson and Horace Thompson, were partners under the firm of “ Thompson Bros.” doing business at St. Paul; that on the 26th of September, 1864, said firm of “ M. W. Downie & Co.,” sold to defendants a certain United States quartermaster voucher of the denomination of value of $12,000, for the sum of $11,100 ; that afterwards the plaintiff purchased the interest of Downie in the firm of “ M. W. Downie & Co.,” and as part of the consideration assumed the payment of all the outstanding indebtedness and liabilities of the firm of “ M. W. Downie & Co.,” and that Downie thereupon immediately, departed to some place unknown' to the plaintiff, in the Southern States.
The complaint then states facts showing, in substance, that the plaintiff, relying upon the representations of the defendants, paid to them at that time the sum of $5,000, to hold as security for the contemplated loss of said U. S. quartermaster voucher; that at this time the defendants undertook and agreed that in case the loss on the said voucher exceeded the amount of $5,000, so secured by plaintiff, the defendants would. look to said Mark W. Downie for the balance, and not call upon plaintiff for such balance; that on the 4th of May, 1866, the defendants notified the plaintiff by letter, that they had accepted, from the United States the sum of $2,000, in payment of said $12,000 quartermaster voucher, and had thereby sustained an aggregate loss of ten thousand dollars— five thousand dollars more than had been secured by plaintiff as aforesaid.
The complaint then states: “ On the 25th day of July, A. D. 1866, this plaintiff called upon the defendants at their
The answer of Horace Thompson, surviving -partner of Thompsons,- denies that the defendants made any representations that any express agreement of indemnity or guaranty as alleged in the complaint was made by Mark W. Downie, in behalf of said. M. W. Downie & Co., to defendants as to the quartermaster voucher, and alleges facts showing an implied agreement and guaranty that said claim of $12,000 was genuine, and free from fraud, error and mistake, and was in all respects valid against the government of the United States, and collectable on the whole amount thereof in the due and ordinary course of business in such cases; and alleges other facts constituting a defence to the plaintiff’s action under such implied agreement and guaranty.
The respondent interposes a' motion to dismiss the appeal.
The appeal is taken from the decision of the court below dismissing the action, and also from the order of the court denying a new trial. So far as the appeal from the decision of the court dismissing the action is concerned the appeal does not lie. Lamb vs. McCanna, 14 Minn. 513, and authorities cited.
It appears from the paper book that the case was settled by stipulation between the parties, and that the case so settled should be used by plaintiff on motion for a new trial. It also appears that the motion for a new trial was brought on by the plaintiff, that the prepared case was used, and that the respective parties appeared on the hearing of such motion, and that the motion was denied. The grounds of the motion are not stated ; that cannot affect the validity of the appeal,
Upon the trial of the cause the plaintiff was sworn, and his testimony tended, among other things, to show that representations were made to him by defendants that an express agreement was made by Downie at the time of the sale of the voucher in question, in effect substantially that alleged in the complaint.
The plaintiff also called as a witness in his behalf A. H. Wilder, who testified as follows: “ Knew the parties; received a letter in 1868, from the plaintiff. I went with it to defendants. 'Saw loth of them September 25th, 1868, and gave it to them to read.” The letter was then introduced in evidence, and the witness Wilder continued: “ They said the letter was mainly correct, and that they purchased the voucher. Mr. Searles owed me, and after receiving the letter, I thought I would inquire into it. Mr. Thompson said it was a .purchase. Mr. J. E. Thompson told me that Downie did guarantee it, but gave no written guaranty. They told me it was understood with all our customers that if the vouchers are not paid they must make them good. They spoke something about scout vouchers. The voucher I am speaking about is the hay voucher.’ Mr. Horace Thompson said that if they were not in so. deep now they would pro rate,” &c.
In the letter from Searles, the plaintiff, to Wilder which was shown to witness is the following statement: “ The . Messrs. Thompson told me that when Major Downie negotiated the hay voucher in 1864, it was on the understanding that if any
The object of Wilder’s testimony, in connection with the letter, was to prove the admissions of the defendants in the interview between them and Wilder. The plaintiff having offered this testimony, the whole of bhe statements of the defendants must be considered.
The witness Wilder details two statements made by the defendants in the interview he had with them, one made by J. E. Thompson, the other by both the defendants. The statement by J. E. Thompson was, ‘‘that Downie did guarantee it, but gave no written guaranty.” It must be understood from the statement of the witness that J. E. Thompson told him that Downie did give an express verbal general guaranty of the voucher, but not a written guaranty; and that their joint statement, that it was understood with all their customers that if the vouchers were not paid they must make them good, referred to an implied guaranty from their course of
It then appeared affirmatively from the testimony upon the part of the plaintiff himself, that the representations which he alleges in his complaint to have been made were true, and not false.
Conceding, therefore, that as the complaint alleges that the defendants represented that the guaranty was an express one, the defendants in their answer^ could not, under the rules of pleading, deny such allegation, and also deny that such representations, if made, were false; and that technically the falsity of the representations were admitted; yet the plaintiff, not having relied upon such technical admission, by his own testimony affirmatively proved the truth of the representations which he alleges were made, and thus disproved his own cause of action. It would bring the administration of justice into deserved contempt to say that under such circumstances a technical rule of pleading was not overcome, and that a plaintiff disproving his own cause of action must still recover.
This being the state of the proof at the close ef plaintiff’s testimony the court properly dismissed the action.
The order appealed from is affirmed.