| Minn. | Oct 14, 1889
After a careful examination of the record in this case we are unable to discover wherein the trial court erred in a single particular. But two of the errors assigned need special comment.
1. Conceding that there w,as a variance between one of the allegations of the complaint and the proof thereon, the defendant failed to make an objection to the testimony, and neglected to call attention to the variance until he presented his motion for a new trial. It was then too late.
2. The defendant failed to establish the counterclaim for alleged conversion, even if we consider the testimony of the grain-dealer, which was stricken out. It must not be assumed because defendant purchased a quantity of oats in Minneapolis, caused them to be shipped to a railway station near his farm in a distant part of the state, consigned to a person whose name has not been disclosed, that they went into plaintiff’s possession. He admits, however, that he received several hundred sacks of the grain, and accounts for the same by showing that the greater part was used for seeding the- farm, and the balance in feeding defendant’s horses. This disposition was expressly authorized by defendant, and if, as a; matter of fact, the latter sold the horses on the day plaintiff’s contract as farm foreman terminated, it was not shown upon the trial.
Order affirmed.