Briggs v. Kennedy Mayonnaise Products, Inc. , 209 Minn. 312 ( 1941 )

After the case was submitted but before decision below defendants filed a memorandum with the court urging it to hold as a determination of all matters in controversy among the parties that plaintiff as Frederica's representative was entitled to recover the $3,600 credit and that Charles be allowed the items withdrawn by him from the corporation.

No reference was made in the findings of fact and conclusions of law to the memorandum. It was not printed in the record, nor was it returned to us or called to our attention until after our decision had been filed. Then it was shown as the basis of the decision below. Plaintiff denies that he knew of the filing of the memorandum until after our decision on appeal, and there is no satisfactory showing to the contrary.

1. A reargument should be granted where, as here, an important fact controlling decision has been entirely overlooked. We failed entirely to consider the memorandum because we did not know of its existence.

2. Where a party has invited the particular judgment which was rendered, he cannot complain on appeal that it was erroneous. Bank of Dakota County v. Garvin, 167 Minn. 101,208 N.W. 642. Nor will a party be permitted to shift his position on appeal. Burke v. Burke, 209 Minn. 386, 297 N.W. 340.

The evidence did not in any view sustain a finding in favor of Frederica for the $3,600, but it would have supported a finding either for or against Charles. If the finding had been against him it might have been for a very large sum. In that situation, defendants, to escape a possible liability for a very large sum, were willing that Frederica be allowed the credit, which was quite a substantial item. True, plaintiff as the personal representative of Frederica was before the court only as the representative of the corporation asserting its cause of action against the defendants, but there was nothing to prevent him from appearing with the consent of all concerned to assert claims due to the estate of Frederica. By causing judgment to be entered in accordance with the findings of fact and conclusions of law, plaintiff consented to the decision and appeared in his own behalf as representative.

The trial judge should have stated in the findings of fact and conclusions of law that the memorandum was the basis of his decision. Without it, the decision below was inexplicable. But with it the decision appears to be a fair and just disposition of all controversies among the parties in their several capacities with respect to the subject matter in litigation.

Plaintiff is therefore entitled to an affirmance. The reversal of the judgment is set aside and in lieu thereof we affirm the same.

Affirmed on reargument.