29 Minn. 68 | Minn. | 1882
This is an appeal from a judgment in favor of the plaintiff, and presents for review (1) the action of the court below in allowing an amendment of the complaint; and (2) the correctness of the amount of the judgment. The action was originally commenced 1 in August, 1874, against the Minnesota Railway Construction Company and Horace Thompson, and has been three times before this court upon appeal. -The decisions upon such appeals are reported in 24 Minn. 199; 25 Minn. 328; and in 27 Minn. 415.
It should be further stated that the complaint, as it stood at the time of the first trial, set forth several particulars in respect to which it was alleged that the contract had not been performed; but did not aver specifically that no truss railroad bridge had been constructed across the Mississippi river at Winona, connecting the St. Paul & Chicago railway or the Winona & St. Peter railroad with the La Crosse, Trempealeau & Prescott railroad, which was, by the terms of such contract, made a condition precedent to the right to have the bonds delivered. Nor were any facts pleaded in the original complaint upon which a reformation of the contract was sought.
After the decision in this court, upon appeal after the first trial, in which the decision of the district court, ordering judgment against the defendants, and the order denying a new trial, were reversed, the plaintiff moved in the court below for leave to amend the complaint by alleging facts upon which a reformation of the contract was sought, so that it should express the agreement which, upon the former trial and upon such appeal, had been claimed by the plaintiff to' be the correct interpretation of the contract. Plaintiff also sought leave to amend the complaint by alleging that neither this defendant nor any company or person had, prior to the commencement of the action, constructed or caused to be constructed across the Mississippi river, at Winona, a truss railroad bridge connecting the St. Paul & Chicago railway, or the Winona & St. Peter railroad, with the La Crosse, Trempealeau & Prescott railroad.
This motion was made upon the record already made in the case, and upon affidavits which tended to show that, until the decision in the supreme court of the United States in the case of City of Winona v. Cowdrey, in December 1876, (93 U. S. 612,) the plaintiff’s attorney believed the true interpretation of the contract required a connection across the river, between the St, Paul & Chicago railway and the La Crosse, Trempealeau & Prescott railroad, to be made directly and immediately by a bridge or ferry, as a condition precedent to the delivery of the bonds; and that until the decision of this court, upon
On the other hand, counter-affidavits were presented upon such motion, controverting, in some respects, those presented on the part of the plaintiff, and going to show that the contract did express the real agreement of the parties. They also showed that the action of Cowdrey against the city, referred to in plaintiff’s affidavits, had been commenced in 3 S7S in the United States circuit court, to recover upon interest coupons of the bonds constituting the subject-matter of this action; that the plaintiffs attorney in this action was its attorney in the action commenced by Cowdrey; that that case was tried in January, 1871, resulting in a disagreement of the jury, and was again tried in June, 1874; that at both of such trials the court had, in its charges to the juries, interpreted the written contract substantially as it was construed by this court on the appeal, after the former trial of this cause; that although the issues were substantially the same in the Cowdrey Cave as in this, yet no evidence was offered upon the trial of the Cowdrey Case to show the negotiations in making the contract, or the understanding of the parties as to its meaning, nor anjr question made that the contract did not express the real agreement of the parties.
Upon the hearing of this motion, the court before which the former trial had been had, refused the amendment upon which a reformation of the contract was sought; not, as it appears, as a matter of discretion, but for the reason that the contract could not be amended so as to charge defendant Thompson (the depositary of the bonds, and who was not a party to the contract) with a liability not incurred under the original contract. The court allowed amendment in respect to the non-building of a railroad truss bridge. The plaintiff then again moved before the same court for leave to make the amendment which had been refused, upon condition of dismissing the action as to Thompson; and upon hearing upon this latter motion the court made an order allowing both the amendments sought, upon condition of dismissing the action as to Thompson. The action was then formally dismissed as to Thompson. From this order allowing the amendments defendant appealed to this court. The appeal was dismissed, for the reason that such order was not appealable. 25 Minn. 328.
Upon the amended pleadings the cause was again tried before Stearns, J., without a jury, in March, 1879. Upon such trial the plaintiff offered evidence to prove the allegations upon which a reformation of the contract was sought, but no relief upon that part of the case was granted to plaintiff. The court, however, found as a fact, in substance, that no truss bridge had been constructed; as required by the contract, and that the bridge of the Winona & St. Peter railroad, by means of which the connection between the St. Paul & Chicago and the La Crosse, Trempealeau & Prescott railroads was actually made, was not a truss bridge, the structure being pile bridging for 1,000 feet of its length, where it crossed an island or sand-bar in the river. It was hence decided that this defendant was not entitled to the bonds in question, and a recovery was accordingly
As to that part of the order allowing an amendment by alleging facts upon which a reformation of the contract was sought, no serious question arises here. That issue, brought into the case by the amendment, was practically eliminated again at the trial. The result was not unfavorable to the defendant, and no such prejudice was suffered as should call for a review of the action of the court below' in allowing that amendment. Nor is it here claimed by defendant that this matter is important except incidentally, and as it. may bear upon the action of the court in allowing the amendment upon the other branch of the case.
* We proceed to consider more particularly the question whether the court,' in allowing that amendment, exceeded its authority. Upon the court is expressly conferred authority to allow amendments to ■pleadings “before or aftqr judgment, in furtherance of justice, and on such terms as may be proper, * * * by adding or striking out the name of any party, or by correcting a mistake in ,the the name of a party, a mistake in any other respect, or by inserting other allegations material to the case.” Gen. St. 1878, c. 66, § 124. To this end the trial court must necessarily exercise its discretion, in view of the circumstance of each particular case, and uo fixed rule can be laid down by which the propriety of allowing such amendments shall be determined. So long as the court in such matters acts within the limits of its discretion, its action will not be reviewed and its propriety or expediency considered. It is only when it is claimed that the limits of discretion have been exceeded that an appellate court will look into the matter, and only when there has been a plain abuse of discretion will .the action of the court below be set aside. Fowler v. Atkinson, 5 Minn. 399, (505.)
. The question presented for our consideration is whether the allowing of this amendment was, under the circumstances, an abuse of discretion., The amendment in itself was a proper one, and, if the application for its allowance had. been seasonably made, no serious question could have arisen as to the right of the court to grant it, for such amendments are allowed with much liberality in furtherance of
It is worthy of notice that although the fact that a truss bridge had not been constructed was not set forth in the original complaint as a ground of plaintiff’s claim, yet the answer did allege affirmatively that such bridge had been constructed, as prescribed by the contract; and upon the trial defendant had offered evidence to prove the fact so pleaded. Plaintiff had then introduced rebutting evidence going to show that about 1,000 feet in length of the structure, where it ■crossed a sand-bar or island in the river, was not truss but pile bridging. More than this, the court had made an express finding upon such evidence that a truss bridge had been constructed. But, as the determination was in favor of plaintiff, there was no opportunity to obtain a review of such finding upon defendant’s appeal.
Under these circumstances, occurring at the trial, it would have been proper for the court, upon the trial, to have allowed an amendment so as to have put in issue what had been thus voluntarily pleaded in the answer, and which was not responsive to any allegation in the complaint. Such an amendment, however, seems not to have been sought. The reason for not having pleaded this fact is very probably that which was suggested by this court after the second trial, — 27 Minn. 415, — viz., that the parties supposed the bridge actually constructed to be such as would be deemed a railroad truss bridge, such as was require^ by the contract; and hence, up to this time, the case of plaintiff had been made to rest alone upon the construction of the contract requiring the building of the St. Paul road, to the west bank of the river at Winona, and the immediate connee
Although the affidavits upon which, in part, the motion was made do not allege that plaintiff’s neglect to plead the fact was for the reason above indicated, yet we may well suppose from the whole record, which was before the court as the basis of this motion, that the court understood that to be the fact. The evidence upon the former trial had fairly tended to show the structure to be what would commonly be known and designated as a “truss bridge,” and so the court had found it to be in fact. These circumstances, while perhaps they do not justify or entirely excuse plaintiff from the inference of negligence in the matter referred to, furnished reasonable grounds for the consideration of the trial court when its discretion was invoked. Moreover, it is not improbable, in view of the final result upon the trial of this issue, that the court entertained doubts as to the correctness of its own conclusion that the bridge in question was a truss, bridge, such as the contract contemplated.
Perhaps the strongest reason that could be urged to oppose the granting of amendments to the complaint, at the time when this application was made, would be the fact that the allowing of the application must result in a retrial of the cause; while, as the case then stood, the entire ground upon which a recovery was sought had been determined to be untenable, and it probably only remained for the district court to enter judgment dismissing the complaint. But the force of this objection was to a considerable extent overcome, so far as the amendment now being considered is concerned, by the fact that a case was made deemed to be sufficient by the court, upon which it was considered that an amendment should be allowed setting forth mistake in the contract, and upon which reformation of it might be sought. The court before which the application was made was to-give such credit to the proofs presented in this regard as they might have been entitled to; and it may have well been considered by the court conducive to the ends of justice that the written contract by-whieh the rights of the parties, in a matter of so great importance, were to be determined, should be made to express their real agreement, and that the mistake of the attorney, shared in also by the
The points we have considered are, in brief, these: (1) The amendment was proper in itself. (2) The same matter had been, made the subject of litigation on the former trial, although it was not in issue. (3) The circumstances were such as to warrant the inference that the parties had supposed the bridge to be such as would be deemed to answer the requirements of the contract; hence the neglect to tender an issue upon that fact, while it was supposed a recovery would be sustained upon other grounds, may have been deemed by the court to have been mitigated. (4) The amount in controversy was large, and the allowance of the amendment, so as to obtain a trial and judicial determination upon the fact in question, could not be presumed to tend to the final prejudice of the
In what has been .said we have not assumed to present the reasons why the court ought to have allowed the amendment, but only to point out some of the considerations which may have moved the mind of the court in deciding, as a matter of favor, not of right, to grant the application. The trial court was called upon to exercise its own discretion and judgment, and not that of any other officer or tribunal. The allowance of amendments, incorporating in the issue matter proper in itself, is not to be set aside merely because the court may have erred in respect to the expediency of allowing the amendments. It is considered that the court does not appear to have exceeded its authority in the premises;
It was claimed upon the argument that the question of error, in an allowance of an amendment to the pleadings, prior to the trial, cannot be considered upon this appeal from the judgment. We hold otherwise, adhering to the former rulings of this court in this case.
The bonds drew interest at the rate of 6 percent. They are found to have been converted on the 27th day of March, 1872. The interest coupons, payable January 1, 1872, had, pursuant to the terms of the contract, been detached, so that at the time of conversion the bonds purported to be the obligations of the plaintiff to the amount of $100,000, with interest from January 1, 1872, at the rate of 6 per cent. The court allowed judgment for the sum of $100,000, with, interest at the rate of 6 per cent, until the date of conversion, and interest upon that.amount after the conversion, until judgment, at. the rate of seven per cent. This was erroneous.
It is true that generally, in actions in the nature of trover for the conversion of bills, notes, bonds, or other like securities, the measure of damages is, ¶rima, facie, the amount due on the security, — Ninin-
Interest coupons unpaid bear interest, after their maturity, (Welsh v. First Div., etc., R. Co., 25 Minn. 314.) at the legal rate — that is, at 7 per cent. Upon this basis the judgment should have been for (1) the principal sum of the bonds — $100,000; (2) the amount of the interest coupons which matured prior to this recovery, but after the conversion, (Msrjh 27, 1872,) with interest at the rate of 7 per cent, upon each of such matured coupons from date of its maturity to date of judgment; and (3) interest upon the principal of the bonds —$100,-000 — at the rate of 6 per cent, from the time the last coupon matured, prior to the judgment, to the date of the judgment itself. If the application of this rule Of computation would reduce the amount of the judgment appealed from at the date of its rendition, the defendant is entitled to have the judgment so modified; but the judg
The cause is remanded to the district court with directions to pro - ceed as above indicated.
Clark, J., having been of counsel, did not sit in this case.