Dodge v. McMahan, 61 Minn. 175

Dodge v. McMahan

61 Minn. 175 | Minn. | 1895

MITCHELL, J.

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 the1 unexpressed intention or motive of defendant himself, of which plaintiffs bad no knowledge,- either when they bought tbe wheat or when they made tbe advances for bim; second, it was inadmissible, under tbe pleadings. Authorities may be found, even in some of tbe code states, to tbe effect that, under a mere denial, evidence of any fact may be given in evidence that would go to tbe original validity of tbe contract sued on, — that is, which, although admitting tbe making of tbe contract, would show that, when made, it was for some reason invalid; as, for example, that it was made on Sunday, or that it was a gambling or wagering contract. But this rule is not in accordance-witb either tbe spirit of tbe reformed procedure or the deci*177sions of this court. The correct rule is that, under a denial, the defendant is at liberty to .give only such evidence as tends to dis: prove the existence of the facts, as facts, alleged by the plaintiff, but not of any matter ■' aliunde, which, although admitting such facts, would tend to avoid their legal effect and operation. Finley v. Quirk, 9 Minn. 179 (194); Brown v. Eaton, 21 Minn. 409; Lautenschlager v. Hunter, 22 Minn. 267; Bliss, Code Pl. § 852. The cases holding that where a plaintiff alleges generally his ownership of property, without setting out the source of his title, the defendant may give evidence of any facts tending to disprove such ownership, so far from being in conflict with this rule, are in exact accord with it.

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.