Seabury v. Schwartz

Mitchell, J. The order granting a new trial must be affirmed,, for the reason that upon the issues submitted by the court to the jury the preponderance of evidence was not only not in favor of the verdict, but manifestly and palpably against it. An examination of the record will, we think, satisfy any one that the overwhelming weight of evidence was that the actual agreement between Berens &. Nachtsheim and the defendants was in exact accordance with the12 written .contract, to wit, that the defendants took all the assets of Berens & Naehtsheim, and in consideration therefor were to pay all the debts of the latter. The direct testimony to that effect is strongly corroborated by the fact that there was a legal necessity for all the creditors being provided for; otherwise, they might attack the transfer of the assets of Berens & Naehtsheim to defendants, — a consideration that'was suggested and talked over during the negotiations of the parties. When carefully analyzed, the testimony of Meehtel does not seriously controvert the fact that this was the agreement. While, in some portions of his testimony, he says that the agreement was that the defendants were only to pay debts to the amount of f 9,500, or only to pay what they realized out of the property assigned, (his testimony is very indefinite as to which,) yet it is pretty evident from other portions of his evidence that he is merely testifying as to what would have been the result had Berens’ statements as to the amounts of the debts and the value of the property been correct.. There is not a particle of evidence that the contents of the written contract were misrepresented to him. The solemn written agreement of parties cannot be set aside on any such weak and unsatisfactory evidence. So far from its being-error for the court to set aside the verdict, we think it would have been manifest error not to have done so. As this was the only issue submitted to the jury, it is not necessary, for the purposes of this appeal, to consider any other questions; but it may be proper, with reference to another trial, to construe the allegations of the answer, in order to determine just what the issues under the pleadings are. Counsel for defendants claims that the defense set up in the answer was not exclusively or chiefly that the writing did not express the real contract of the parties, and that defendants were induced to sign it through misrepresentations as to its contents, but that they were induced to enter into an agreement by the false and fraudulent representations of Berens & Naehtsheim as to the amount of their indebtedness and the value of their assets. The answer is a difficult one to construe. It would seem as if the pleader, conscious of some legal difficulties in the case, had scram [13] bled his statement of facts in order to conceal the addled character of the defense. When this case was here on a former appeal, — 45 Minn. 150, (47 N. W. Rep. 448,) — we construed the answer as alleging that the real agreement of the parties was that in consideration of the transfer by Berens & Nachtsheim of all their property to defendants the latter should pay the debts of the former to the extent of the proceeds of such property, but that Berens & Nachtsheim procured defendants to execute the written contract, obligating them to pay all their debts, by fraudulently representing to them that the writing expressed the real agreement. It was upon this construction that we affirmed an order overruling a demurrer to the answer, holding that if the facts were as stated the writing was not the actual agreement, which alone they were bound to perform. A re-examination of the answer confirms us in the opinion that this is the only defense which it contains. It alleges the false and fraudulent .representations of Berens & Nachtsheim as to the amount of their debts and assets, and that in reliance upon the truth of these representations the defendants were induced to enter into, not the agreement contained in the writing, but an agreement to pay, upon the indebtedness of Be-rens & Nachtsheim, such amount, and no more, as they could realize out of the assigned property; or, as elsewhere expressed in the answer, they agreed to nothing more, and incurred no more liability, than to sell said property, and apply the proceeds to the payment of the indebtedness of Berens & Nachtsheim. The answer further alleges that Berens & Nachtsheim represented to them that the writing correctly stated this agreement, and that they signed it supposing that this representation was true. The answer then alleges that the defendants have fully performed the actual agreement by paying out upon the indebtedness of Berens & Nachtsheim an amount in excess of all that was realized out of the assigned property. If the actual agreement was as defendants allege, to wit, to pay debts only to the extent of the proceeds of the assigned property, the representations of Berens & Nachtsheim as to the amount of their debts and the value of their assets were wholly immaterial, and would be no ground for rescinding the contract; and even if they were, the [14] defendants have never elected to rescind. They do not even suggest a rescission in their answer. What they do claim is that they have fully performed the actual agreement. (Opinion published 52 N. W. Rep. 321.) It will also be observed that • the contract which they allege they were induced to make by reason of these representations is not the one contained in the writing, and which they are now seeking to avoid. We cannot construe the answer as alleging any defense except that the writing does not state the actual agreement that the defendants were induced to sign the writing by false representations as to its contents, and that they have in fact fully performed the agreement actually made. Order affirmed.