208 N.W. 408 | Minn. | 1926
The complaint alleges the bringing of the action in replevin and contains further allegations to the effect that when the machinery was purchased defendant promised and agreed to take back any machine which plaintiff should wish to return and to give plaintiff credit for the purchase price thereof, and also promised and agreed to make good any parts found to be defective or missing, and that these agreements were not included in the written contract, for the reason that defendant intended to use the contract as collateral security for loans at the bank and it would not be acceptable to the bank if it contained such provisions. The complaint contains further allegations to the effect that defendant had refused to accept a machine which plaintiff sought to return and had failed to replace certain defective or missing parts. *509
Plaintiff asked the court to reform the contract by inserting the alleged oral agreements therein. Courts cannot make contracts for the parties, and cannot reform or change the writing evidencing a contract by including therein provisions which the parties did not intend to include therein. Here both the complaint and the evidence presented by plaintiff itself show conclusively that the parties did not intend to include these alleged oral agreements in the written contract, and the court cannot insert them and thereby make a different contract from that agreed upon by the parties. As neither the complaint nor the evidence discloses sufficient facts to entitle plaintiff to any relief in this action, the court correctly directed a judgment of dismissal.
The temporary restraining order was granted on condition that the cause be immediately placed on the calendar for trial if at issue, and if not then at issue as soon as issue was joined. Plaintiff consented to this condition, but when the cause was called for trial moved to strike it from the calendar, asserting that, as the answer alleged that plaintiff was in default under the conditional sale contract, it had the right to put that allegation in issue by a reply. Unless plaintiff was in default under that contract, it had a perfect defense to the action in the municipal court and no ground for asking for an injunction. Plaintiff promptly admitted the default at the trial and hence could not have denied it. Moreover this allegation was wholly immaterial, for plaintiff had no cause of action whether it was admitted or denied.
The ruling refusing to permit Mr. Francis C. Cary to appear as attorney for plaintiff was correct. Mr. Cary is no longer an attorney at law, and the right of a party to a suit in court to appear in person therein does not entitle him to appear for a corporation even if he owns all its capital stock, for the corporation is a distinct legal entity.
Judgment affirmed. *510