Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1878-03-15
SUPREME COURT.
DECISIONS OF CASES 4RGUED 1T
THE OCTOBER TERRI.
4. ~. Cummings and Harry Cummings, Appel
la'sts. as. John Taylor, Respondent.
SYTI ARTS

4. ~. Cummings and Nary Cummings, Appel-
lants. as. John Iaylor, Respondent,
SYLLABUS.
Certain questions submitted to the inrv in
this considered and held to have been prom
erly submitted.
The answers to five questions thus submitted
] held to be sustained by the evidence, and the
answer to a sixth question not to be sustained
and the award of damages directed to be mod
lied accordingly.
| When witness has been examined, cross
examined and dismissed from the stand, he can
be recalled for further cross-examination only
by the indulgence of the court; and when per-
united to be SO recalled, the court is entitled
to exercise large discretion as to the manner in
which, and the extent to which the favor granted
shall be made use of. A motion for new
trial on the ground of newly discovered evil
dence, held to have been properly refused such
evidence, being almost wholly cumulative,
some OF that which is not cumulative not being
shown to be material and the rest being of such
a character that it is not likely to change the
result of the trial.
| Upon the trial of this action the following
| questions were submitted to the Jury and
answered as follows:
First-'Has plaintiff been damaged by rea-
son of the waste and detention charged in the
complaint. If yes, how much?
Verdict-Yes. Four hundred dollars.
Second-"How much in value did defendant
pay plaintiff on the contract alleged?
verdlct-Two thousand five hundred and
thirty-one dollars.
/ Ihird-'Did the plaintiffs procure the
defendants to execute said contract by means
of deceit false representation, made to him
by plaintiff when he made said contract?
Verdict--Yes.'
Fyth-"Did defendant remain in possession
OF the mill property in controversy by the con-
sent and In consequence of the pomises and
inducements alleged as being made by plaintiff
to defendant?
Verdict-Yes.'
Sirth-"What, if any, damages has defendant
sustained by reason of the false representations
of plaintiffs charged?
lars
This case comes here upon appeal from an
order denying new trial. The grounds upon
which new trial was asked, we're
Ftrst-Excessive damages.
Second-Verdict not justified by the evidence.
Ihin-Errors in law excepted to-
Fourth-Newly discovered evidence
: On considering the first and second
grounds, 1T has been necessary to make care
full and detailed examination of the large mass
OF testimony presented in tho record but a
brief and general statement of the results of
|
OF the opinion. The testimony is in an unusual
degree conflicting and contradictory. 1t pre-
SCENTS a case in which a jury might have come to
conclusions widely differing from those which
they have reached, and yet the court be unable
to say that their findings were unsupported by
evidence. We are unable to discover any suffi-
Gent ground upon which the answer to the
first five questions can be disturbed. There is
abundant evidence having a reasonable tend
ency to support them.
ho +o4 10 ~
sustained.
The only damages alleged in defendant 8
answer, and the only damages proved
or attempted to be proved, SO far
as we discover, are such as resulted
from the payments made by defendant upon
the contract. These payments were made in
certain personal property and real estate, and
IN their answer to the second question, the
jury find their amount to be 1851. The dam
ages found in the answer to the sixth question
should, therefore, be reduced to that sum. This
appears to have been the views taken by defend
ants counsel in giving notice that on the hearing
OF the motion for a new trial, he should move for
payment for 1851, and interest thereon from
the date of the verdict. less the damages, $780,
found by the jury in favor of plaintiff and in
terest thereon from the date of the verdict. It
Is proper to add, that as the defendant claimed,
and is found to have been injured by plaintiff $
fraud, the case one in which exemplary
damages might properly have been claimed
and awarded. But as we have already seen
the defendant was not entitled to claim them,
or to have them awarded to him under his an
swer and the evidence. This brings us to the
alleged errors in law. 1t is said that the court
erred in submitting the first, second and fifth
questions to the jury. 1t is urged that as
respects the first, the case is analogous to Ber-
key vs. Judd, IA MINI. 494. That was a case in
, which in a certain contingency the proper de
termination of the action would require state
ment OF partnership accounts between the par
ties. To make this statement as the court
J say, every item and the value Of every item OF
partnership assets chargeable to the respective
parties, as well as its liabilities, and by whom
paid, if paid at all, must be ascertained. I'm
der such circumstances, it was held that
the court should not submit
the taking of the accounts t.
q jury. There is no just analogy between
that case and the case bar. Here the ques-
ton Is simply as to the amount of damages oc-
} casioned by waste and detention of certain mill
property.
There are accounts between partners to be
investigated. There is no accounting to be
done at ALL The investigation does not neces.
!, sarlly require the production of any books OF
account. 1t it is deemed advisable to make
use OF account books for the purpose, or show
} ing expenditures and receipts, &C., there is nc
reason why this may not properly be done be.
fore jury, just as it might be in an action
, upon book account. This is in no important
| Ao7PCCo analogous W UHe examination OF part
nership books for the purpose of stating
and adjusting complicated partnership ac
7 counts. The latter is process demanding
Z skill not possessed by an or
dinay jury. The former, simple matter
within the comprehension and capacity of
jury composed, as it ought to be and is pre-
sumed to be, of men of at least common educa.
: ton and experience; as to the second question
, it is objected that it is not involved in the
: pleadings, We think it is directly and plainly
involved. The fifth question is We think, suf
!, hclently specific. If it be true, as plaintiffs
claim, that it could not truly be admitted OF
denied as whole, the answer to it might have
been adjusted to meet this state of facts This
| question is also unsolved in the pleadings
One OF the important matters in controversy
was, as to whether defendant, of his own mo.
ton, elected to remain in possession of the
mill under the original contract, or whether
without any such election he was induced by
plaintiff to remain upon considerations outside
of the original contract.
With regard to the questions addressed to
Kaiser and Hare, and excluded by the court, it
Is to be observed that after these witnesses had
been examined and cross-examined, and dis
missed from the stand they were recalled by
plaintiffs for further cross-examination, and
the questions referred to were then put to them.
VI course this could be done only by the indul-
gence of the court. 1t interferes with the
orderly conduct of q trial, and the court is en-
titled to exercise a large discretion as to the
manner in which and the extent to which the
favor shall be made use of.
In this case we cannot say that the court
was not sufficiently justified in excluding the
questions upon the ground that their purpose
and materiality were not apparent upon their
faces. If they were asked with the view claim