King v. Nichols & Shepard Co.

53 Minn. 453 | Minn. | 1893

Gileillan, C. J.

The complaint is good. It alleges a contract to put the machine 'in good repair and condition; a failure to do so; that it was broken in several parts, defective, and out of repair; and what it would- cost to put it in the repair and condition which defendant had agreed to put it in. If the defects in the condition of it were not alleged specifically enough to enable defendant to prepare to try the issue, its proper course was by motion to require the complaint to be made more definite and certain in those particulars. The assignments of error and the objections to evidence, based on the assumed insufficiency of the complaint, have, therefore, no foundation.

The evidence was sufficient to justify the jury in finding that the agent who sold the machine had authority to make the contract sued on; that the machine was out of repair; and from the evidence they might have found that it would have cost $406 to put it in good repair and condition. Their verdict was for $250.

The objection now made to some of the evidence as to the condition of the machine, that the times referred to by the witnesses were too remote from the time of the contract, was not specifically taken at the trial. The rule which this court has always followed, — certainly since Gilbert v. Thompson, 14 Minn. 544, (Gil. 414,)—is that, where the real objection to evidence is of such a character that, if specifically pointed out when the evidence is offered, the party offering it may remove the objection by further evidence, the general objection that the evidence is incompetent, immaterial, or irrelevant will not cover it, but it must be specifically stated. ' Had it been so made in this case, it might have been removed by proof that, when seen by the witnesses, the machine was in.the same condition as when delivered to plaintiff

Upon such a contract as this, to wit, to put the machine in good repair and condition, it was not necessary that, in order to recover, plaintiff should himself put it in that condition. As soon as defendant failed to do what it agreed to do plaintiff might recover the reasonably necessary cost of doing it; and the allegation in the complaint that plaintiff will be obliged to payout and expend a specified sum to put the machine in the condition that defendant agreed to put it in is equivalent to an allegation that the reasonably necessary cost of putting it in such condition was that sum.

We see nothing in any assignment of error not above referred to that requires special mention. Order affirmed.

Vanderburgh, J., took no part in this decision.

(Opinion published 55 N. W. Rep. 604)