73 Minn. 52 | Minn. | 1898
Action to recover from the defendants, as guarantors, the amount of two promissory notes. The defendant Larson answered, setting up two defenses: (1) That, without his knowledge or consent, the plaintiff for a valuable consideration extended the time for the payment of the notes; (2) payment of the notes before the commencement of the action.. On the trial the defendant was required by the court, on motion of the plaintiff, to elect which defense he would stand upon, on the ground that the two defenses were inconsistent. He elected to rely upon his first defense, and excepted to the order of the court compelling him so to elect. Verdict for the plaintiff, and the defendant appealed from an order denying his motion for a new trial. 0
The first assignment of error is that the trial court erred in requiring the defendant to elect which defense he would rely upon. A sufficient exception was taken to the ruling. The defenses were not inconsistent, for both might be true. The time of payment may have been extended, and the notes paid after they became due. Roblee v. Secrest, 28 Minn. 43, 8 N. W. 904; Gammon v. Ganfield,
Order reversed, and a new trial granted.
