98 Minn. 414 | Minn. | 1906
Plaintiff, a corporation doing business at Milwaukee, in the state of Wisconsin, sold and delivered to one Allen, a liquor dealer at Monticello, this state, a stock of liquors of the value of $574 upon a credit of ninety days. The contract of sale is disclosed by certain cor
The new trial was granted for the error, in the opinion of the court below, in admitting in evidence, over defendant’s objection, a deposition taken by plaintiff and offered in support of its cause of action. It is practically conceded that the deposition was improperly received in evidence. A sufficient notice of its taking was not given; defendant had not waived its right to object to the same on the trial, and it should have been excluded. But it is insisted by counsel for plaintiff that the error was without prejudice, for the reason that the evidence contained in the deposition was fully supplied by other proof. The objection to the deposition is purely technical, and we should sustain counsel in this contention, if the record would permit of so doing.
The action is based upon the fraudulent conduct of Allen, and the burden to establish all the facts necessary to impeach the transaction was upon the plaintiff. Defendant was in no way connected with the purchase of the goods, and it was sought to charge it with notice of the fraud by facts and circumstances sufficient to put it upon inquiry. To make a case against defendant it was necessary to show, among other things, the sale of the goods to Allen upon credit, and that they had not been paid for. The fact that the goods were sold was fully shown by evidence not contained in the deposition, but the terms of the sale did not appear, except by letters from the plaintiff to Allen, which are attached to and made a part of the deposition. These documents were not identified by any other witness on the trial. Allen identified those
As already suggested, defendant is a stranger to the main controversy and had the right to insist that a case be made against it by competent evidence; and we are not prepared to say, as a matter of law, that the jury would have drawn the inferences from the other evidence, which we say might have been drawn. The rule that the admission of incompetent evidence upon a material issue, where the trial is before a jury, is not ground for a new trial, if the fact which such-evidence tends to prove is established by other evidence, applies only where the fact is otherwise conclusively established. Such is not this case.
It follows that the order granting a new trial must be affirmed; but we may add, in view of a new trial, that no other error is disclosed in the record as here presented.
Order affirmed.