Minneapolis Times Co. v. Nimocks

Mitchell, J. This was an action to recover a call or assessment on the stock of the plaintiff corporation. From an examination of the record we are satisfied that the trial court correctly ruled that upon the evidence the only question for the jury was whether the defendant had notice of the assess [384] ment, and upon that question the evidence abundantly justified the verdict. It must consequently be affirmed, unless the court committed some error of law during the trial. 1. The allowance of the amendments to the complaint on the trial was clearly a proper exercise of discretion on part of the court. 2. It is contended that the court erred in admitting the testimony of plaintiff’s secretary as to the contents of the notice of the call which he sent to defendant, for the reason that the secretary had a copy of the notice, which would have been better evidence than his recollection of its contents. We do not think the case presents the question which counsel seeks to raise,' viz. whether the law recognizes any degrees in the various kinds of secondary evidence. The secretary testified that the notices which he sent to stockholders were dictated by him to a typewriter from a general form which had been furnished by the attorneys of the company for use on such occasions, but that he could not say that he accurately followed the form; that this form had blanks for names, amounts, signatures, etc., which had to be filled up in the notices sent out. He testified that he thought he had a copy of this general form in his office, but that he did not know whether he had any copy of the notice which he sent to defendant. It did not appear that the notice sent out was ever compared with the general form used in dictating it. It is very evident that on this state of facts the copy of the general form, even if offered, would not have been admissible, because it was not a copy of the notice; and it was not made to appear that plaintiff had any such copy in its possession. Even under what is sometimes called the “American doctrine,” —that a copy of a document is better evidence than the recollection of a witness as to its contents, — the rule is that, where the nature of the case does not of itself disclose the existence of such better evidence, the objector must not only prove its existence, but also prove that it was known to the other party in season to have been produced on the trial. 1 G-reenl. Ev. § 84, note. 3. If it was the fact that the special meeting of the directors which made the assessment was not called upon notice .as provided in the by-laws, it is wholly immaterial, for the reason that all the directors were personally present, and participated in mak [385] ing the assessment. The only object of notice is that the directors have an opportunity of being present at the meeting and taking part in its proceedings. 4. Some exceptions were taken to the charge of the court on the subject of notice. The statute under which plaintiff was organized provides that the directors may call in the subscription to the capital stock by installments “by giving such notice thereof as the by-laws shall prescribe.” Plaintiff’s by-laws made no provision on the subject of notice, but the court correctly instructed the jury that the notice must be actual or personal, so that, if sent by mail, it would be effectual only when received. In some portions of his charge the learned judge inaccurately used the expression “notice or knowledge,” which might have been understood as meaning that it would be sufficient if the defendant by any means or from any source ascertained the fact that an assessment had been made on his stock. Of course, this would not be correct, for, while no particular form is necessary, yet the notice must come from the proper corporate authority, and give the stockholder to understand that a call has been made, and that he is requested to pay the amount. But when the court’s attention was called to this inaccuracy of expression he immediately corrected it by instructing the jury that the defendant “must either have had notice or he must have promised to pay with full knowledge of the assessment, one or the other.” It seems to us that this must have prevented or removed any misconception on part of the jury. If, however, defendant still feared that they might misunderstand what was meant by “notice,” he should have asked for more specific instructions. Order affirmed. Vanderburgh, J., absent, took no part. (Opinion published 55 N. W. Rep. 546.) Application for reargument denied June 13, 1893.