Tilleny v. Wolverton

55 N.W. 822, 54 Minn. 75, 1893 Minn. LEXIS 14

• Court: Supreme Court of Minnesota
• Decided: June 29, 1893
• Status: Published

Opinion

Mitchell, J.

.This case has already been here twice on former appeals. 46 Minn. 256, (48 N. W. Rep. 908;) 50 Minn. 419, (52 N. W. Rep. 909.)

The last appeal was from an order denying a new trial. After the affirmance of that ord'er by this court, judgment was entered in the court below on the findings, and this appeal is from that judgment.

It is well settled that where, upon an appeal from an order denying a new trial, the order is affirmed, all questions that might have been raised on that appeal are res adjndic.ita, and will not be considered on an appeal from the judgment entered upon the verdict or findings. Schleuder v. Corey, 30 Minn. 501, (16 N. W. Rep. 401;) Adamson v. Sundby, 51 Minn. 460. (53 N. W. Rep. 761.)

Every question attempted to be raised on this appeal might have been, and in fact was, raised on the appeal from the order denying a new trial. The only question which counsel claims is open to him now is that the conclusions of law were not justified by the findings of fact. This question, he contends, was not properly before the court on a former appeal, because not a ground for a new trial. Whatever may be the rule in other jurisdictions, it has long been the common practice, sanctioned by this court, to consider and pass upon this point on a motion for a new trial, and, if the conclusions of law are wrong, to modify them. The practice, although admitted not to he strictly logical, has been sanctioned as convenient and as long settled. Ames v. Richardson, 29 Minn. 330, (13 N. W. Rep. 137;) Coolbaugh v. Roemer, 32 Minn. 445, (21 N. W. Rep. 472;) Farnham v. Thompson, 34 Minn. 330, (26 N. W. Rep. 9.) See, also, Wilson v. Richards, 28 Minn. 337, (9 N. W. Rep. 872.)

(Opinion published 55 N. W. Rep. 822.)

But, even if the point was still open, there is nothing in it. A careful examination of the allegations of the answer, which the court finds were all true, will show that the findings are made more full and explicit than counsel assumes them to be.

Counsel is also in error in assuming that it was necessary that the plaintiff should, before ratifying the sale made by defendant as her agent, have had full knowledge of all the details as to the extent of the interest of the agent in the proposed purchase. The important and material fact for her to know was that her agent was interested as purchaser in the proposed sale of her property, and therefore that his interests did or might conflict with hers; If, with knowledge of this fact, she saw fit to approve of the sale, deliver her deed, and accept the purchase money without inquiry as to the extent of his interest, or as to the details of the arrangement between him and the other purchasers, she must be deemed to have deliberately ratified upon the knowledge she had without caring for more.

Judgment affirmed.

Vanderburgh, J., absent, took no part,