119 Minn. 199 | Minn. | 1912
This action was brought in the district court of the county of Hennepin to recover damages for the negligent delay of the defendant, as a common carrier, in transporting a carload of coal, and for a conversion of the coal after it arrived at its destination.
The complaint alleged two causes of action in separate counts; the first of which purported to .allege a cause of action based on the delay of the defendant in transporting the coal, whereby the plaintiff sustained damages in loss of profits on the coal in the net sum of $26.69; and the second one alleged a conversion of the coal by the defendant after it reached its destination, to the plaintiff’s net damage in the sum of $59.66. No objection to the complaint for
The answer put in issue the allegations as to the first alleged cause of action, and as to the second one it admitted the conversion, and alleged a settlement therefor with the consignor of the coal and payment of the damages, as authorized by the statutes of the state of Illinois, where the contract for transportation was made. The answer alleged a counterclaim, amounting to $10, for demurrage of the car of coal.
The cause was tried by the court without a jury. The parties entered into a written stipulation of the facts, and thereby agreed that the cause be submitted to the court and tried upon the facts so stipulated. Thereupon the trial court made the stipulation a part of its findings of fact, and found the facts to be as stated in the stipulation. As a conclusion of law from the facts found, the court ordered judgment for the plaintiff in the sum of $76.35. It was so entered, and the defendant appealed from the judgment.
The stipulation of facts was allowed and certified as the settled case, which was unnecessary, for the facts stipulated are a part of the findings of the trial court. The sole question, then, presented by the record for our decision, is whether the facts so stipulated and found sustained the conclusion of law and the judgment. There can be no question here made as to a misjoinder of causes of action, for it was waived by failing to raise it by demurrer or answer. Nor does the record present any question of the sufficiency of the complaint, for all questions presented by the stipulation and findings are presumed to have been litigated by consent. This eliminates several questions discussed in the briefs of counsel.
The only question, then, meriting special consideration, is whether the record shows that the plaintiff was entitled to recover for a conversion of the coal.
The short facts relevant to this question are these: The plaintiff, a retail dealer in coal at Sleepy Eye, this state, purchased the coal in question of Keller & Company, at Sesser, Illinois, which was-there to be delivered to plaintiff free on board the car, and the purchaser was to pay the charges for freight. Keller & Company, as
It is clear, upon a consideration of these facts, that the plaintiff
If it be conceded that by the laws of Illinois the consignor might Lave maintained an action for the benefit of the plaintiff, the conclusion does not follow that the defendant had a right to settle with .the consignor and discharge the cause of action of the plaintiff .after the defendant had due notice that the coal had been paid for, that it then belonged to the plaintiff, and that its claim for damages had been presented to it.. Any right which the consignor may have Lad to bring the action for the plaintiff’s benefit was not exclusive, .and the plaintiff, as the real party in interest, had the right to eniorce its claim by action or otherwise as it might be advised.
We therefore hold, upon the special facts of this case, that the .settlement of the plaintiff’s claim with the consignor is not a defense to this action.
Judgment affirmed.