City of Winona v. Thompson & the Minn. Ry. Constr. Co.

• Court: Minnesota Supreme Court
• Writing for the Court: GILFILLAN
• Citation: City of Winona v. Thompson & the Minn. Ry. Constr. Co., 27 Minn. 415, 6 N.W. 795 (Minn. 1880)
• Decision Date: 07 October 1880
• Parties: THE CITY OF WINONA v THOMPSON AND THE MINNESOTA RAILWAY CONSTRUCTION CO.

27 Minn. 415

6 N.W. 795

THE CITY OF WINONAvTHOMPSON AND THE MINNESOTA RAILWAY CONSTRUCTION CO.

Supreme Court of Minnesota.

Filed October 7, 1880.

Appeal from order of district court, Steele county.

Thos. Wilson, for respondent.

Bigelow, Flandrau & Clark, for appellant.

GILFILLAN, C. J.

Although an expression used by the court in dismissing the appeal from the order allowing an amendment to the complaint in this case (25 Minn. 328) may indicate a different rule, we are satisfied that an order made previous to the commencement of a trial, and not as a part of it, granting an application for leave to amend the pleadings, cannot be reconsidered by the court below on a motion for a new trial. The abuse of discretion mentioned in section 253, c. 66, Gen. St. 1878, as ground for a new trial, is an abuse of discretion happening at the trial, and which prevents a fair trial of the issues as they exist when the trial commences, and on an appeal from an

order granting or refusing a new trial, this court can review only what was properly before the court below for consideration on the motion. Therefore we cannot consider, on this appeal, the point made that the court below improperly allowed the amendments to the complaint. The contract on which this action is based has certainly been fruitful of controversy and difference of opinion as to its proper interpretation. This was caused by the fact, as appears from the contract itself, that after a draft of the contract was made the parties, before executing it, inserted other clauses, conflicting, to some extent, with clauses already in the draft, and then, without striking out or changing these latter clauses, executed the contract.

That the truss bridge mentioned in the contract was to entitle the construction company to the bonds, to be constructed within three years from the date of the contract, is settled by the interpretation given the contract both by the supreme court of the United States in City of Winona v. Cowdry, 3 Otto, 612, and this court when this case was before it on a former occasion. 24 Minn. 199. Those decisions, and especially that of this court, are to the effect that the crossings of the river on a truss bridge, and connection with the La Crosse, Trempealeau & Prescott Railroad over such bridge, by means of the track of either the St. Paul & Chicago Railway or the Winona & St. Peter Railroad, were, by the clauses inserted after the draft of the contract was made, substituted for the passing of the river by bridge or ferry, and connection by means alone of the St. Paul & Chicago Railway. The connection by the mode contemplated in the original draft was to be made within three years, otherwise the bonds were to be returned by the depositary to the city. When another mode of connection was substituted, the stipulation that the connection should be made within three years was left unchanged.

Only one bridge was built, and by means of that, and of the Winona & St. Peter Railroad, the...