Bowe v. Minn. Milk Co.

• Citation: 44 Minn. 460,47 N.W. 151
• Parties: BOWE v MINNESOTA MILK CO.
• Decision Date: 14 November 1890
• Court: Supreme Court of Minnesota (US)

44 Minn. 460

47 N.W. 151

BOWEvMINNESOTA MILK CO.

Supreme Court of Minnesota.

Nov. 14, 1890.

(Syllabus by the Court.)

1. The defense of a former recovery is “new matter,” and should be pleaded, but held in this case to have been litigated by consent, although not set up in the answer.

2. The defendant contracted to purchase and receive of plaintiff all the milk produced by his cows from November 1, 1887, to November 1, 1888, and to furnish daily all the cans necessary to transport it from plaintiff's farm to St. Paul. In January, 1888, the defendant corporation was, upon petition of its stockholders, dissolved by order of court, after which date it neither did, nor attempted to do, any business. In August, 1888, plaintiff brought an action against defendant for damages for breach of the contract, the breach alleged being the failure to furnish cans for and receive all the milk during the months of April, May, and June, 1888; and in January, 1889, recovered judgment on the merits. In April, 1889, the plaintiff brought a second action for damages for a similar breach of the same contract during the months of July, August, and September. Held that, the contract being an entire one, although by its terms to continue for a year, and the breach being total, because of defendant's disability to perform by reason of its dissolution, a single right of action immediately accrued to plaintiff to recover all his damages, present and prospective, for the loss of his contract, and the recovery in the first action was a bar to the second.

3. The judgment in the first action would be conclusive evidence in the second of the contract, as alleged, but not of the existence of the corporation after January, 1888, as the latter fact was not involved in or essential to plaintiff's right to recover.

Appeal from district court, Ramsey county; KERR, Judge.

Romans & Orr, for appellant.

A. E. Bowe, for respondent.

MITCHELL, J.

The plaintiff's main contention in the court below was, and his sole contention here is, that this action was barred by former recovery. The defense of a bar by a former judgment, being in the nature of a confession and avoidance, is “new matter,” within the meaning of the Code, and must be specially pleaded. No such defense was set up in the answer, but the record shows that both parties tried the cause, and allowed it to be submitted to the jury, upon the theory that this was an issue in the case; and, in accordance with our repeated decisions, they must be deemed to have consented to the trial of the issue, and are bound by the result the same as if it had been within the pleadings.

This actions, commenced in April, 1889, was for damages for the breach of contract. The contract declared on was that about November 1, 1887, the defendant agreed to purchase of plaintiff all the milk which his cows might produce for the year commencing November 1, 1887, and ending November 1, 1888, and to furnish him daily the necessary cans in which to ship the milk from his farm to St. Paul, defendant's place of business. The breach charged was the failure and refusal of the defendant to furnish cans for a part of the milk during the months of July, August, and September, 1889, by reason of which the milk was left on plaintiff's hands, to his damage. It appeared on the trial that in August, 1888, the plaintiff had brought a former action against defendant for damages for the breach of this same contract, the breach alleged being the failure and refusal of the defendant to furnish cans for and receive all the milk during the months of April, May, and June, 1888; that, upon the trial of that action, plaintiff recovered judgment on the merits for $180 damages, January, 1889. The answers of defendant were substantially the same in both actions, to-wit, a denial of the execution of the contract, and an allegation of the dissolution of the corporation January 28, 1888, by order of court, and that since that date it had not done or attempted to do any business. Upon the trial of the present action, it appeared by the undisputed evidence that the...