104 Minn. 247 | Minn. | 1908
Action to recover the amount alleged to be due plaintiff for the construction of a ditch for drainage purpdses upon the farm of the defendant. Plaintiff had' a' verdict, and defendant appealed from an order denying his alternative motion for judgment notwithstanding the verdict of for a new trial.
The sole question presented by the assignments of error is whether plaintiff’s evidence made out a cause of action within the allegations of the complaint.
But, if defendant’s contention be conceded, it is by no means clear that there was either a failure of proof or fatal variance between the allegations of the complaint and the proof. Under our statutes (section 4282, R. L. 1905), all parties to a joint contract are jointly and severally liable, and may be sued jointly or severally at the election of the plaintiff. Hollister v. U. S. Fidelity & Guaranty Co., 84 Minn. 251, 87 N. W. 776. In those states having statutes like the one cited, it is generally held that there is no fatal variance where it is alleged
As to the suggestion that the evidence does not show that defendant agreed to pay the amount claimed, viz., fifty cents per rod, it is sufficient to say that defendant nowhere disputed the testimony of plaintiff’s witness that the compensation was expressly so agreed upon.
Order affirmed.