Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1878-07-04
SUPREME COURT.
DECISION OF C-IsE FILED JESTER
Day.
Bartlett Presley and Robert 4. Kemp, ResDon
dents, Us. Thomas Loeoyy and Clinton Mor1i
son. lDDe7lunts
OPINION.

IL ID alleged IN the complaint that the plain
tiffs in July, 1872, docketed in the county of
Hennepin, a judgment in their favor against
one Erickson for $2,393.63, which thereupon
became lien upon certain real estate of which
Erickson was owner; that in April, 1874, de-
PENDANT Lowry and Erickson made an agree
ment, by the terms of which Erickson on the
one hand, was to convey the said real estate to
Lowry to such person as he might desig-
nate, subject to all encumbrances thereon, and
on the other hand, Lowry, as part of the con-
sideration of such conveyance, was to pay
the judgment aforesaid and cause the same to
be satisfied; that Erickson thereupon conveyed
the real estate pursuant to the agreement, and
Lowry promised to pay the judgment and cause
the same to be satisfied, but has failed to per-
form his promise. The allegations as to the
agreement upon Lowry's part are denied in the
answer.
The issue thus raised as to the promise al
legged to have been made by Lowry, was the
most important issue in the case, and the ties.
timony bearing upon twas conflicting and con-
Trajectory. The testimony introduced by the
plaintiffs went to show that Lowry made the
promise, that introduced by the defendant that
he never made it. Erickson having been called
as witness by the plaintiffs, was asked what
Lowry said to him about Presley at the time
when he (IEricksen) made the conveyance to
Lowry.
His answer was to the effect, that Lowry want
ed him to ask Presley if he would like to settle
the Judgment, but he told him to go to Presley
and try to settle it, and if he did not succeed
to tell Presley to come to Minneapolis (where
Lowry hyeD and he (Lowry) would trade real
| estate for the judgment, and the witness added,
Il Went down to Presley and told him to go up
| there On being asked to repeat the talk, u
between him and Lowry, the witness proceeded
| in substance as follows, viz: He, Lowry, told
me to go down to Presley and tell him to come
up there and settle with him for the Judgment.
and | did SO. The defendant Kemp hav-
ing testified that Presley and himself were
partners, that he learned from Erickson that
| he had sold the real estate before mentioned to
Lowry. and having further testified that he did
not remember whether Presley was present or
not at the time when Erickson informed him
of the sale. was asked what Erickson said The
question having been. objected to as incompe-
| tent. irrelevant and immaterial, the objection
| overruled and exception taken, the witness an
sWered as follows: hlr. Erickson said that
Mr.. Lowry had purchased his property from
him and would SETTLE one claim in full
"A party's own admission, whenever made,
may be given in evidence against him, but the
admission or declaration of his
agent binds him only when it is
regard to transaction then depending.
BIT ae,nt ferret opus. 1t is because it is verbal
act and part OF the res gestoc that it is admis-
sible at all"
1. Cir. Evid, Sis.
Proof that Lowry had authorized Erickson to
make the statement testified 10 by Kemp
would have been evidence of an admission by
Lowry OF the facts stated. But proof that
| Erickson made the statement was adm issible
only upon the theory that he was acting for
Lowry, j. e., That he was Lowrys agent and
| In addition to render the statement admissible
| it must appear that Erickson made it in regard
| to and in the course of the transaction of the
business which he authorized to transact,
| in the transaction of which he was
| engaged when he made the statement. Now.
while from the testimony of Erickson as to the
authority given him by Lowry to confer with
| Presley IN reference to settling the Judgment,
we think the jury would have had the right to
| infer an authority to confer with Kemp in
reference to the same matter if it appeared
| that Kemp and Presley were partners and as
such owners of the Judgment. There is no
evidence IN the case tending to show that
! Erickson was engaged in exercising or in any
| way assuming or attempting to exercise the au-
thority conferred upon him by Lowry when be
lEricksen) had the conversation with Kemp.
There is nothing tending to show
| that the conversation with Kemp was
anything more than merely casual converse
| ton entirely outside of Ericksen's authority,
and without any purpose as respected such au-
/
dence going to show that Lowry upon being in.
formed OF the statement made by Erickson
assented to it or acquiesed in it. Within the
we'll established rule quoted from Greenleaf
| Kemp's testimony as to what Erickson said
was immaterial because no facts were proven
to lay foundation for it's admission by show
ing that Lowry was bound or in any way
affected by it.
The effect of the ruling of the court was to
instruct the jury that this testimony was ma.
terial and as upon that understanding Of it, it
| is altogether probable that it exercised an in
/! huence upon the verdict, its erroneous admis-
| sion calls for a new trial.
| We think the other assignments of error moi
| well made. The letter was admissible as part
of history of the transactions between Lowry and
| Erickson. As to the charge of the court
the portion complained of by the defendant
was perhaps not quite as carefully expressed
| as it should have been, but the defendant took
| no exception to it.
Order denying new trial reversed and new
| trial directed. BERRY. J.