39 Minn. 535 | Minn. | 1888
The defendant did not call in question the sufficiency of the complaint until the commencement of the trial, after he had answered. He then moved for judgment upon the pleadings. Under such circumstances, the complaint should be sustained, if, upon a liberal construction, a cause of action is disclosed. Kelly v. Rogers, 21 Minn. 146; Dunham v. Byrnes, 36 Minn. 106, (30 N. W. Rep. 402;) Malone v. Minnesota Stone Co., 36 Minn. 325, (31 N. W. Rep. 170.) Under this rule, the complaint may be construed as showing that the sale for $10,950 was in accordance with the terms prescribed by the defendant. The motion for judgment also involved the question whether the defendant was entitled to such a judgment for want of a reply to the allegations of the answer, as to the execution by the defendant of a certain written instrument having been fraudulently procured. The action of the court in denying the motion was justified, because, if for no other reason, the allegations of the answer were insufficient to connect that instrument with anything alleged in the complaint.
The written instrument, as given in the record before- us, executed by the defendant, authorizing the plaintiff to sell the land, described the property authorized to be sold as “my farm of 109¿- acres on sections 32 and 33, town 119, range 21, Brooklyn township, Hennepin county, Minnesota; being N. W. J of N. W. £ sec. 33, and N. E. J of N.
Note. A motion for reargument of this case was denied January 14,1889c