32 Minn. 167 | Minn. | 1884
Under the pleadings on which this action was tried, one of the material issues was whether defendants had sold to plaintiff a certain harvester and binder. The original answer, signed and verified by one of defendants’ attorneys of record, admitted this fact. An amended answer was subsequently interposed, which put the fact in issue. On the trial the court, against defendants’ objection and
Of course it is elementary that an amended pleading entirely supersedes the original, which ceases to be a part of the record. The original has no longer any existence as a pleading; but this is not the question here. Although superseded as a pleading, may it still be introduced in evidence as an admission against the party who interposed it ? If it was signed or verified by the party, or if it otherwise affirmatively appears that the facts stated therein were inserted with his knowledge or by his direction, we can see no reason why it is not as competent as any other admission made by him, although it has ceased to be a pleading in the case, — not, of course, conclusive, but subject to explanation. To introduce such evidence when a party has thus changed front is a common practice, and we have no doubt a correct one. And even when the pleading is signed or verified only by the attorney, if the party stands by it by allowing it to remain the pleading in the case, so that it contains a solemn admission of record, it would perhaps be presumed that its allegations of fact were inserted by his authority, and hence admissible against him in other actions. The weight of authority seems to go that far. Gordon v. Parmelee, 2 Allen, 212; Bliss v. Nichols, 12 Allen, 443; Brown v. Jewett, 120 Mass. 215; Ayres v. Hartford F. Ins. Co., 17 Iowa, 176; Truby v. Seybert, 12 Pa. St. 101. There is the greater reason for such a rule, under the present system, where technical forms are abolished, and pleadings are required to state the facts. There is no longer any reason for considering the allegations of a pleading as the mere suggestions of counsel. But where the party has substituted an amended pleading, thereby impliedly saying that the original was interposed under a mistake as to the facts, we think it would be going too far to admit in evidence against him the original, when not verified by him, or when it does not otherwise appear that its contents were inserted with his knowledge or sanction.
We are led to this conclusion largely from practical considerations.
For these reasons we think the court erred in admitting the evidence. As this will render a new trial necessary, we need not here consider the numerous other exceptions taken by appellant, as they are mostly such as may not occur on another trial. We will simply remark that we think there was sufficient evidence to warrant a jury in finding that Earl & Hanson were agents of defendants to sell these Osborne machines, with authority, express or implied, to give either of the warranties set forth in the complaint, and with authority to employ canvassers to solicit orders and make sales, and that Kinney made this sale as canvasser for Earl & Hanson, and in behalf of defendants, and not for himself as principal.
But on another point we think there was no evidence to sustain the verdict. From the complaint it appears that the warranty of July was settled and adjusted by the warranty and agreement of December, and hence became unimportant, except as furnishing the inducement and consideration for the latter. Plaintiff’s action is brought upon the express provision of the agreement of December 5th, to recover back the purchase-money which he had paid for the machine, and which defendants had agreed to refund in ease the machine did not fulfil the warranty. Whether under this contract this was plain
Order reversed.
Dickinson, J., because of illness, took no part in this decision.