51 Minn. 525 | Minn. | 1892
Walter C. Doherty had a contract with the City of St. Paul to construct the Phalen Creek Sewer, and he sublet the work to defendant. The defendant contracted with plaintiff, Thomas M. Breen, for such granite blocks as should be needed in paving the floor of the sewer, to be cut at St. Cloud and shipped by rail and delivered on board the cars at St. Paul. The faces of the blocks were of two sizes, one four by eight inches and the other six by six inches. The amount used was to be determined by measurement of the face in the work as completed. For the square blocks plaintiff was to be paid $1.40 per square yard and for the others $1.70.
Plaintiff claimed for 3,357 square yards of square blocks, and 680 square yards of oblong, amounting to $5,855.80, on which he had been paid $5,163.30, and this action was to recover the balance, $692.50, and
The written admission of the defendant, Campbell, having relation to a state of facts existing during the copartnership, although made after the dissolution, was admissible. I was, on the first view of this question, very much disposed to think, that the right to introduce this admission was waived by the subsequent examination of Campbell; but on looking more particularly into the report of the presiding judge, it seems to me to be obvious, that the plaintiff was driven to consent- to, or propose his examination, as a witness, in consequence of the rejection of his written admission. This was an alternative, at best, dangerous to the plaintiff, and which was -forced upon him by the error of the Court. I think therefore that a new trial ought to be granted, and it is accordingly so ordered. ■
Motion granted.
