22 Minn. 413 | Minn. | 1876
The rulings of the court below excluding evidence offered by defendant to-show the amount of wheat at each of the places, Hudson and Glenmont, cannot be sustained upon the theory that the reports made to plaintiff from time to time constitute an account stated. Conceding that they could in any case have that effect, yet, to enable plaintiff to recover upon them as such, it was necessary that he should declare upon them as such, so that if there were fraud or mistake, sufficient to avoid the effect of the stated account, the defendant might have an opportunity to allege it. By relying in his complaint upon the original transactions, and not upon the claim of a stated account, he treats the original transactions as still open for proof; and upon an answer making an issue as to the allegations of the complaint, each party has the right to offer proof as to such original transactions.
Eor the error in excluding the evidence offered by defendant there must be a new trial; but as the plaintiff makes the point here which we think, from the record, was not' made below — that the reports operate as an estoppel — we will say that while, perhaps, there was sufficient evidence, as it stood when the parties rested, to sustain a verdict based on
Order reversed and new trial ordei’ed.