27 Minn. 463 | Minn. | 1881
Action for trespass upon plaintiff’s land. The damage alleged in the complaint was the trampling upon and spoiling grain growing on the land. Plaintiff had a verdict, assessing his damage at $161.50. The objections made here to the verdict are that it includes items of damage other than that specifically mentioned in the complaint
The plaintiff proved apparently all the damages naturally resulting from the trespass complained of, including other items than damage to the grain alone. From time to time objections on various grounds were made to the evidence of damage, but in no instance was it objected that the evidence was not relevant to the allegations of the complaint. That objection was not made until the proofs were all closed, and the court came to the charge. The parties having until that time in the trial proceeded on the theory that the complaint was sufficient to admit the evidence, the court might then-have ordered it amended to conform to the proofs, or it might do as it did, disregard the variance, and instruct the jury to find according to the evidence.
Order affirmed.