Oehler v. Falstrom ( 1966 )

Rogosheske, Justice

(dissenting).

I cannot agree with the disposition of this appeal.

At the close of plaintiff’s case in chief the only evidence tending to prove that the money was loaned was his subjective declaration that such was his intention which he first disclosed after he supplied the funds to defendants and when he demanded repayment. In my opinion, upon all of the testimony there is no evidentiary basis from which it could be reasonably inferred that the funds were either advanced at defendants’ special instance and request or that defendants, by words or conduct, expressly or impliedly promised repayment. Thus, the proof necessary to establish a prima facie case for a loan is lacking. The trial court simply concluded that plaintiff did not prove by a fair preponderance of the evidence that the transaction was a loan, and therefore the issue of whether the delivery of the funds constituted a gift is unnecessary to decide.

Unlike Chard v. Darlington, 243 Minn. 489, 68 N. W. (2d) 405, plaintiff here did not have the burden of establishing ownership of personal property to make out a prima facie case of conversion but rather the burden of establishing that the transaction was a loan. To remand and direct a finding on defendants’ claim of a gift presupposes that the court erred in finding a failure on the part of plaintiff to prove his claim. If the court on remand finds the evidence also insufficient to establish a gift, as is quite likely, the disposition of this case will be unchanged unless we are holding that in that event plaintiff’s proof is sufficient as a matter of law.

In my opinion, we have no choice but to affirm unless the facts of this case call for a change in the fundamental rules relating to burden of proof.¹ It may be that plaintiff has a right to recover all or part of the funds supplied upon some theory other than a loan, but that question is not presented and it is not within our province to make that determination on this record.

1 Rule 1(5), Uniform Rules of Evidence; McCormick, Evidence, § 319; Netzer v. N. P. Ry. Co. 238 Minn. 416, 57 N. W. (2d) 247.