Little v. Cook , 55 Minn. 265 ( 1893 )

Gilfillan, C. J.

One Frank E. Little was the owner of certain real estate in Minneapolis, subject to a mortgage, and executed to the Star Elevator Company a lease upon it. He then conveyed to one Thwing, and Thwing conveyed to plaintiff. Frank E. Little gave to defendants an order, assented to by plaintiff, upon the tenant requesting it to pay the rent to the defendants. Plaintiff gave two similar orders, the three covering the rent for two years, amounting to $3,000, and upon them the rent was paid to defendants.

Plaintiff claims that the orders were given and the rents collected under an agreement between him and defendants that they should pay the rents collected to satisfy the interest upon the mortgage.

Defendants claim that the orders were given under an agreement between them and Frank E. Little, assented to by plaintiff, by which the defendants were to receive the rents, and apply them upon indebtedness due them from Frank E. Little.

(Opinion published 56 N. W. Rep. 750.)

On the question of how the rents, when collected, were to be applied, the evidence was directly contradictory, so that it was proper for either party to prove facts that would make his version of the arrangement the more reasonable and probable. For that purpose it was proper for defendants to prove, by parol, if need be, that plaintiff held the legal title to the property for the benefit of Frank E. Little, for his use; not to establish a trust, but to show that between plaintiff and Frank E. Little it was understood that the latter might appropriate the rents.

But the court below erred in permitting defendants to prove the-declarations to that effect of Frank E. Little. There was nothing in the case to remove these from the rank of hearsay.

Order reversed.