City of Winona v. Minnesota Railway Construction Co., 27 Minn. 415

27 Minn. 415 | Minn. | 1880

Gilfillan, C. J.

Although an expression used by the court in dismissing the appeal from the order allowing an amendment to the complaint in this case (25 Minn. 328) may indicate a different rule, we are satisfied that an order made previous to the commencement of a trial, and not as a part of it, granting an application for leave to amend the pleadings, cannot be reconsidered by the court below on a motion for a new trial. The abuse of discretion mentioned in Gen. St. 1878, c. 66, § 253, as ground for a new trial, is an abuse of discretion happening at the trial, which prevents a fair trial of the issues as they exist when the trial commences; and on an appeal from an order granting or refusing a new trial, this court can review only what was properly before the court below for consideration on the motion. Therefore we cannot consider, on this appeal, the point made that the court below improperly allowed the amendments to the complaint.

The contract on which this action is based has certainly been fruitful of controversy and difference of opinion as to its proper interpretation. This was caused by the fact, as appears from the contract itself, that after a draft of a contract was made, the parties, before executing it, inserted other clauses conflicting to some extent with clauses already in the draft, and then, without striking out or changing these latter clauses, executed the contract.

That the truss bridge mentioned in the contract was, to entitle the construction company to the bonds, to be constructed'within three years from the date of the contract, is Settled by the interpretation given the contract both by the supreme court of the United States in City of Winona v. Cowdrey, 93 U. S. 612, and this court when this ease was before it on a former occasion. 24 Minn. 199. Those decisions, and especially that of this court, are to the effect that the crossing of the river on a truss bridge, and connection with the La Crosse, Trempealeau & Prescott railroad over such bridge, by means of the track of either the St. Paul & Chicago railway or the Winona & St. Peter railroad, were, by the clauses inserted after the draft of the contract was-made, substituted for the passing of the river by bridge or ferry, and connection by means alone of the St. Paul & Chicago railway. The connection by the mode contemplated in the original draft was to be made within three years, otherwise the bonds were to be returned by the depositary to the city. When' another mode of connection was substituted, the stipulation that the connection should be made within three years was left unchanged.

Only one bridge was built, and by means of that, and of the Winona & St. Peter railroad, the connection with the' La Crosse, Trempealeau & Prescott railroad was made. If this was not a truss railroad bridge, it did not meet the requirements of the contract. Plaintiff contracted for that kind of bridge, and, without its consent, no other kind, although equally as good, or even better than a truss bridge, and although of the kind used in crossing the river at other points, could be substituted for the kind it contracted for. This disposes not only of one of the points made- by defendant on-the evidence, but of some points on exceptions taken to rulings upon evidence offered by defendant, and we need not further refer to such points.

The defendant claims that the plaintiff accepted and acquiesced in the bridge which was in fact constructed, as a compliance with the contract. So far as the evidence in the case bears on this proposition, it is certainly very cogent that, up to the plaintiff’s amendment of the complaint, the parties regarded the bridge actually constructed as the kind of bridge ■called for by the contract; but the fact of such acceptance and acquiescence is not found by the court below. It is not alleged in the answer, which relies on the allegation that a truss railroad bridge was actually constructed within the three years; and it does not appear that, on the trial, it was treated as an issue in the case, and the fact litigated as though it were alleged in the pleadings; therefore, w.e cannot consider the evidence tending to show it.

The court below has found as a fact that no truss bridge was constructed within the three years, and that the bridge actually constructed and used to make the required connection was not a truss bridge. There is certainly sufficient evidence to sustain this finding. The findings of the court on the first trial; they having been set aside, of course cannot be an estoppel; and the judgment in the Cowdrey Case, the parties not being the same as in this case, and this defendant not claiming under Cowdrey, is no estoppel.

Of the points made on exceptions to rulings of the court below, excluding evidence offered by defendant, we need notice specially but one. On the trial, defendant introduced several expert witnesses and put to them questions like this: “Was that bridge, constructed as you have described it, a truss railroad bridge across the Mississippi river at Winona ?” Under the circumstances of the case, the words “across the Mississippi river at Winona” vitiate the question, because they include in it a' question of fact; which was one of-the litigated: facts in the case. The bridge extending from the west to the east bank of the river was composed, commencing at its west end, first of several hundred feet of trusses; then of about' 1,000 feet of trestles; then of more trusses, and after that of more trestles. The part under the 1,000 feet of trestles was claimed by plaintiff to be river, by defendant to be an island in the river; and whether, in fact and law, river- or not, was-sharply litigated. If the part under the trestles was no part of the river, and all of the river was spanned by the trusses, defendant claimed — no doubt correctly — that the bridge across the river was a truss bridge. If the part under the trestles was river, plaintiff claimed the truss bridge did not extend across the river. How a witness would answer such a question as that put would probably depend on the view he took of the litigated fact, was the part under the trestles river ? All such questions were properly excluded.

Order affirmed.

The defendant having moved for a reargument, the following order was made:

“Ordered, that there be a reargument of this cause upon the following propositions:

“Is the evidence in the case — that after the construction of the railroad bridge across the Mississippi river at Winona, the plaintiff accepted or acquiesced in such bridge as satisfactory under the contract, so that it is bound by such acceptance or acquiescence though the bridge was not in fact in accordance with the' contract — such that, under the rule in respect, to setting aside verdicts or findings of fact as contrary to. evidence, this court ought, to set aside the findings in this case?

“Does it-appear from the record that the question of such acceptance or acquiescence was, on the trial, treated as an issue of fact in the case as if it had been made by the pleadings ?”

The cause having been reargued pursuant to this order, the following opinion was filed on January 28, 1881.

Gilfillan, C. J.

Upon the reargument allowed and had in this case, we adhere to what was at first decided, that there was no issue at the trial upon the acceptance or acquiescence in by the city of the bridge constructed across the Mississippi river at Winona, as in accordance with or satisfactory under the contract between the parties. The pleadings make no such issue. Prima facie, the issues tried are those made by the pleadings. The parties may, by consent, try an issue not made by the pleadings — that is, they may, when they come to trial, waive the want of formal allegations in the pleadings as to a particular fact or state of facts; and where they do so, the case is to be determined as it would be had such allegations been in the pleadings. Where there is no express or formal waiver, but it is to be gathered from the course of the trial, the record of the trial must make it appear very clearly that the pasties did in fact, and without objection, litigate the issue not pleaded as though it were in the pleadings. Any other rule would be liable to operate as a surprise, and to work injustice. The record in this case does not make it appear that the issue in question was litigated at the trial. The mere fact that evidence which would tend to prove that issue was offered and received, is not enough, for all the evidence to which our attention is called upon this point was admissible, if admissible upon any conceivable issue, upon those made by the pleadings, and it is presumed to have been offered and received upon them.

The decision of the. case heretofore made is adhered to.