Rhodes v. Pray

Dickinson, J. The defendant’s motion, made at the trial, to com-pel the plaintiff to elect upon which of the several causes of action, :as set forth in the complaint, he would rely, was addressed to the ;sound discretion of the court. Hawley v. Wilkinson, 18 Minn. 468, (525;) Plummer v. Mold, 22 Minn. 15; Wagner v. Nagel, 33 Minn. 348, (23 N. W. Rep. 308.) The refusal to require an election was not an abuse of discretion, in view, especially, of the fact that the [394] plaintiff was suing as executor, and upon a cause of action the precise facts in respect to which may well have been supposed to have been unknown to the plaintiff. The action was tried by the court, and it is not apparent that the cause of the defendant was prejudiced by the course pursued. The correct legal construction was put upon the due-bills. The liability of the defendant, as maker, was qualified only to this extent: that the amount specified should be allowed to the plaintiff’s testator upon final settlement of matters relating to the purchase of the lands described, and were not at once payable. There being no claim or demand on the part of the defendant to set off against these written evidences of indebtedness, as the court considered, and, as we think, justifiably, the plaintiff was entitled to recover. There was sufficient evidence of a consideration for the due-bills, in connection with the admitted purchase of the testator’s interest in the lands described in the instruments. The assignment of error in respect to the receiving of Exhibit C in evidence cannot be considered, as the exhibit is not in the case, and we are not informed as to what it was. The same is true in part as to Exhibit D, although, from what is stated as to it, the evidence would seem to have been proper as a part of the proof that the defendant never presented any claim against the estate of the testator, excepting one which was afterwards withdrawn, and that he had no claim against the testator, or against his estate, which should be adjusted by “final settlement” before the due-bills should be deemed payable. Evidence of the value of the land was admissible under the pleadings. Although the defendant purchased from the plaintiff’s testator only the equitable interest which the latter had as a purchaser under contract, yet this evidence, in connection with the testator’s contracts of purchase, was admissible for the purpose of proving the-value of the equitable interest purchased by the defendant. Whether it went far enough to establish that value is not here in question • and, in view of the findings of the court, charging the defendant upon the express written contracts, the execution of which is not disputed, it is at least doubtful whether, if the evidence were erroneous, it would not have been error without prejudice. [395] The defendant’s counsel made an offer in the following form: “To-prove by witness [the defendant] the consideration of these due-bills,- and what was contemplated and intended by the final settlement in said due-bills referred to, and what was to be done by Grosvenor before said due-bills were to become an absolute and valid claim against defendant.” Objection was interposed, on the ground that,Grosvenor being dead, the defendant was “estopped by the statute-from testifying to any conversation with him, or to any admission made by him.” This objection was sustained, and no explanation was given as to the nature of the evidence proposed, save such as is-embraced.in the offer. The offer does not particularly disclose the nature of the evidence intended to be introduced; but it might naturally be apprehended that it might embrace conversations between the witness and the deceased party, or admissions of the latter rela-tive to the matter in issue, which is prohibited by the statute in the-terms stated in the objection. Gen. St. 1878, c. 73, § 8; Griswold v. Edson, 32 Minn. 436, (21 N. W. Rep. 475.) That the plaintiff took this to be the possible purpose and scope of the offer is apparent from the precise objection stated; and it may well be inferred that the-court, in sustaining this objection, only intended to exclude evidence-of the kind specified in the objection. Under these circumstances,if the proposed evidence did not include proof of such conversations- or admissions of the deceased party, the defendant should have obviated the objection by such further offer or statement as would show' that it was not within the scope of this objection and ruling. The fact that the plaintiff, the executor, testified to conduct and statements of the defendant to him, which might be deemed to admits-his liability upon the.due-bills, had not the effect to waive the pro-teetion of the statute, so as to enable the defendant to testify as to-conversations with, or admissions of, the deceased party. The de-fendant was a competent witness except as to the matters specified in the statute. He might dispute an alleged admission of his liabil-> ity, or present any relevant evidence, not prohibited by the statute* Order affirmed.