Smith v. Miller ( 1894 )

Collins, J.

The plaintiff and defendant exchanged properties, the former receiving what is known as the “Albion Apartment House,” in the city of St. Paul, and an electric light franchise and plant connected therewith. Claiming that false and fraudulent representations had been made respecting the above-mentioned property, and which caused him to make an exchange, plaintiff tendered back that conveyed to him, and demanded the restoration of that with which he had parted. Upon refusal by defendant, he brought this action to recover the value of the latter. A trial by the court resulted in findings of fact with conclusions of law in defendant’s favor, and from a judgment entered thereon this appeal was taken, a case having been duly settled and allowed.

We have gone over the very lengthy record with care, and cannot agree with plaintiff’s counsel in his claim that the allegations of the complaint respecting the fraud and misrepresentation of defendant’s agent, when procuring the exchange of properties, were conclusively established, and that by the evidence it was shown beyond a doubt that the transaction was an “outrageous swindle” on his client. That the testimony, outside of the written instruments, was very contradictory, is apparent; but without going into useless details, and at the same time carefully avoiding any expression of opinion on the merits, as disclosed by the proofs, we do not hesitate in saying that the findings of fact in defendant’s favor were at least supported by the evidence. None of them can be set aside on the ground that they are without evidence to sustain them; and this remark refers to the findings concerning the representations said to have been made respecting the electric light ordinance, as well as those bearing upon the real property.

By the second assignment of error the plaintiff’s counsel attacks a ruling of the court on the trial, whereby there was excluded an answer to a certain question put to his client when examining him in rebuttal, and it is this ruling which we are now to consider.

During the cross-examination of the plaintiff as a witness in his own behalf, defendant’s counsel attempted and offered to show that,, in respect to some matters concerning which the former claimed there had'been fraud and false representations, he (plaintiff) had been fully and correctly informed by other persons before the trade was consummated. To this class of testimony, plaintiff’s counsel objected, solely upon the ground that it was incompetent, irrelevant, and immaterial, and the objection was sustained by the court. When plaintiff was called in rebuttal he was asked by his attorney: “Did you ever ascertain in any way, either by investigation or otherwise, any facts which either showed that any of these statements in Exhibits A and O were false, or which led you to believe they were false?’ And, if so, state what the facts were.” The objection made by defendant’s counsel, and sustained by the court, — and it is this ruling which is challenged by the second assignment of error, — was that it was incompetent, irrelevant, immaterial, and not rebuttal. It was as to plaintiff’s correct information concerning some of the statements found in these exhibits, before he made the trade, about which defendant’s counsel attempted to inquire on cross-examination, and was prevented by objections from plaintiff’s counsel, sustained by the court. In other words, defendant’s counsel was first prevented from showing that the plaintiff did have full and accurate information before he exchanged properties as to certain facts, regarding which he insisted there was fraud and misrepresentation, and then plaintiff’s counsel was stopped in an effort to show, by an answer to a general question, that his client had no such information from any source. It would be difficult to suggest why, if the first ruling, made when plaintiff’s attorney objected, was correct, the second, resulting from the opposing counsel’s objection, was not also correct.

But the correctness of the later ruling does not depend upon the fact that these rulings were strictly consistent and hence plaintiff is not in position to take this advantage of such a condition. As before stated, the question was asked when the plaintiff was called in rebuttal, but it was as broad and general as it could have been made. It was not a proper question to ask at that time. It was not in rebuttal, qnd for this reason, if there was no other, the court was justified in excluding an answer. Again, the plaintiff had already been questioned as to any information which defendant had attempted to show he had when the trade was completed, as to the falsity of certain alleged statements, and had fully answered.

In sustaining this objection the court remarked that he thought there was no evidence in the case of any communications to the plaintiff, except those made to him by a certain named witness. We think the court was in error when making this remark, but whether he was or was not did not affect the correctness of his ruling on the objection as made. The assignments need no further consideration. Judgment affirmed.

Buck, J., absent, sick, took no part.

(Opinion published 59 N. W. 1076.)

Application for reargument denied October 9, 1894.