Smith v. Glover

Supreme Court of Minnesota

Smith v. Glover

56 N.W. 168, 54 Minn. 419, 1893 Minn. LEXIS 88

DecidedAugust 17, 1893

StatusPublished

This text of 56 N.W. 168 (Smith v. Glover) is published on Counsel Stack Legal Research, covering Supreme Court of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Smith v. Glover, 56 N.W. 168, 54 Minn. 419, 1893 Minn. LEXIS 88 (Mich. 1893).

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Opinion

Collins, J.

This case has been twice before this court, and may be found reported in 44 Minn. 260, (46 N. W. Rep. 406,) and 50 Minn. 58, (52 N. W. Rep. 210, 912.) On the last appeal it was remanded for a new trial only of the issue whether plaintiffs had abandoned their rights under the contract. On this the court below found against them, and the only question presented by this appeal is whether the evidence justified the finding of fact. As this was purely a question of the weight of evidence, and as we have arrived at the conclusion, from a thorough examination, that it amply warranted the finding, no good purpose would be sub-served should we discuss the facts at length, especially as this has been done by the trial court in his memorandum, which, while in a few minor matters is fairly subject to some of the criticisms of counsel for plaintiffs, states the general nature and effect of the evidence very fairly, in our opinion. We will state, however, one or two errors into the learned counsel for plaintiffs have fallen, we think, and which may have very materially and noticeably affected their views throughout their discussion of the case as to the weight of evidence.

(Opinion published 86 N. W. Rep. 168.)

First, they seem to assume that in the former appeals we held that the existence of certain facts was insufficient to establish abandonment of the contract by their clients, and, with this assumption, they then proceed to argue that the new evidence introduced at the last trial on this question had added nothing. A reference to the opinions on the former appeals will show that we did not so hold or decide. On the first appeal we merely determined that laches, which depend on a variety of considerations, did not so clearly appear from the allegations of the complaint as to justify us in holding, upon a demurrer to the pleading, that a recovery could not be had. On the second appeal a new trial was ordered, on the ground that certain evidence on the issue of abandonment had been improperly excluded.

The other error of counsel to which we refer is in construing the communication of date September 24, 1875, (Exhibit F,) from Perc-ies, through Yan Kirk, to plaintiff Smith, as authorizing the latter to remain quiescent, and to do nothing either in the way of performing his contract or otherwise, until such time in the future as Percies’ and Page’s-personal representative might sell the land, and turn over to plaintiffs their share or interest in the proceeds. We do not think the cómmunieation referred to fairly admits of any such construction.

Order affirmed.

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Collins, J.

This case has been twice before this court, and may be found reported in 44 Minn. 260, (46 N. W. Rep. 406,) and 50 Minn. 58, (52 N. W. Rep. 210, 912.) On the last appeal it was remanded for a new trial only of the issue whether plaintiffs had abandoned their rights under the contract. On this the court below found against them, and the only question presented by this appeal is whether the evidence justified the finding of fact. As this was purely a question of the weight of evidence, and as we have arrived at the conclusion, from a thorough examination, that it amply warranted the finding, no good purpose would be sub-served should we discuss the facts at length, especially as this has been done by the trial court in his memorandum, which, while in a few minor matters is fairly subject to some of the criticisms of counsel for plaintiffs, states the general nature and effect of the evidence very fairly, in our opinion. We will state, however, one or two errors into the learned counsel for plaintiffs have fallen, we think, and which may have very materially and noticeably affected their views throughout their discussion of the case as to the weight of evidence.

(Opinion published 86 N. W. Rep. 168.)

First, they seem to assume that in the former appeals we held that the existence of certain facts was insufficient to establish abandonment of the contract by their clients, and, with this assumption, they then proceed to argue that the new evidence introduced at the last trial on this question had added nothing. A reference to the opinions on the former appeals will show that we did not so hold or decide. On the first appeal we merely determined that laches, which depend on a variety of considerations, did not so clearly appear from the allegations of the complaint as to justify us in holding, upon a demurrer to the pleading, that a recovery could not be had. On the second appeal a new trial was ordered, on the ground that certain evidence on the issue of abandonment had been improperly excluded.

The other error of counsel to which we refer is in construing the communication of date September 24, 1875, (Exhibit F,) from Perc-ies, through Yan Kirk, to plaintiff Smith, as authorizing the latter to remain quiescent, and to do nothing either in the way of performing his contract or otherwise, until such time in the future as Percies’ and Page’s-personal representative might sell the land, and turn over to plaintiffs their share or interest in the proceeds. We do not think the cómmunieation referred to fairly admits of any such construction.

Order affirmed.

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56 N.W. 168, 54 Minn. 419, 1893 Minn. LEXIS 88, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-glover-minn-1893.

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