61 Minn. 175 | Minn. | 1895
This was an action to recover money “loaned to tbe defendant, and paid for bis use and benefit.” Tbe answer was a general denial. Tbe plaintiffs offered evidence tending to prove-that tbe defendant employed them, as commission men, to buy for bim 5,000 bushels of wheat for future delivery, on a margin of five cents per bushel, and at tbe same time requested them, if this margin should be exhausted by a decline in tbe market, not to allow bim to be “sold out,” but to put up the additional margins for him, and then advise bim -or draw on bim for tbe amount; that tbe amount sued for was money advanced by plaintiffs, in pursuance of this request, to keep good tbe margins on defendant’s wheat. In tbe absence of any motion to make tbe complaint more definite and certain, or to compel plaintiffs to elect whether they claimed for money loaned or for money advanced and paid out for defendant at bis request, there was no error in admitting tbe evidence. There was no fatal variance between tbe allegations of tbe complaint and tbe proof.
2. Tbe court excluded certain evidence offered by defendant for tbe alleged purpose of proving that tbe transaction was not an actual purchase of wheat, but a mere wager by bim on tbe future price of tbe commodity. Tbe evidence was properly excluded for two reasons: First, it went merely to the
3. This disposes of all the assignments of error except the seventh and eighth, which relate to the charge of the court. While counsel for defendant discussed these assignments of error in their oral argument, they neither discussed nor referred to them in their points and authorities or printed brief. The rule is that all assignments of error not relied on in the points and authorities will be deemed abandoned and waived. Hence the respondents, in preparing their brief, were not called upon to consider them. The injustice of allowing an appellant to omit all reference to an assignment of error in his points and authorities served on the respondent, and yet permitting him to rely on it in his oral argument, is illustrated in this case. The respondents, who submitted on printed brief, assumed, as they had a right to do, that these assignments of error were abandoned, and hence did not discuss them. We, therefore, decline to consider them.
Order affirmed.