40 Minn. 176 | Minn. | 1889
In this case the defendant set up a counterclaim for the value of goods sold and delivered. On the trial the evidence in his behalf tended to prove a cause of action for damages, for the conversion of the goods, and sounding in tort. The plaintiff expressly consented to the admission of the evidence under the answer, and offered evidence in rebuttal thereof, so that the matter was treated by the parties as a legitimate subject of counterclaim in the action. Under these circumstances the evidence should have been considered by the court, and a finding made thereon. The court made no finding upon the issue thus made by the parties in respect to the counterclaim, on the ground that it did not arise out of contract, and was not therefore the proper subject of counterclaim. As an "abstract proposition we see no reason for questioning the sound
Order affirmed.