Cook v. Finch

• Decision Date: 01 January 1874
• Citation: 19 Minn. 350
• Parties: THOMAS J. COOK and others v. J. E. FINCH and others.
• Court: Minnesota Supreme Court

Page 350

19 Minn. 350

THOMAS J. COOK and others

v. J. E. FINCH and others.

Supreme Court of Minnesota.

Appeal by defendants from an order of the district court, Dakota county, denying a new trial.

Smith & Van Slyck, for appellants.

J. N. Searles, for respondents.

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BERRY, J.

In this action a verdict was rendered June 25, 1871, for plaintiffs. At defendant's request the court granted a stay of proceedings for 30 days to allow defendants to prepare a case and bring on the motion for a new trial. The proposed case was served July 22d, and the proposed amendments thereto August 3d. October 5th, plaintiffs, on due notice, entered judgment on the verdict, and taxed costs, and, on November 4th, issued execution. November 28th the district judge issued an order, directing plaintiffs to show cause December 1st why the proposed case should not be settled and signed. Plaintiffs appeared, in obedience to the order, and objected to the settlement and signing of the case, "on the ground that the same had been abandoned under Gen. St. p. 483, § 237, as amended; Gen. Laws 1870, p. 141." The objection was overruled, and the case settled and signed, plaintiffs excepting. The motion for a new trial came on for hearing, and was denied by order of December 30th.

Upon this state of facts the plaintiffs here move to strike the case settled from the record, upon the ground that, under the statute, the "case" was to be deemed abandoned.

Chapter 74, Laws 1870, after providing that a proposed case shall be served within twenty days after trial, and proposed amendments within ten days thereafter, and that such case and amendments shall be presented for settlement within fifteen days after service of the amendments, provides further, in these words: "If not presented within the time aforesaid, or such further time as may be stipulated or granted, the same shall be deemed abandoned." We are of opinion that the effect of the allowance of the order to show cause, and of the subsequent settlement of the case thereunder, was to grant the "further time" above spoken of, and that for this reason plaintiffs' above-mentioned ground of motion is not well taken. The authority to grant such further time is not only conferred by clear implication, by the provision just quoted, but would appear to be expressly conferred by section 105, c. 66, Gen. St., which authorizes a district court in its discretion to "allow an answer or reply to be made, or other act to be done, after the time limited by this (sixty-sixth) chapter.

Plaintiffs further move to dismiss the appeal from the order denying a new trial herein, "on the ground (to use their own language) that said motion having been made after the expiration of the stay of proceedings, and after the entry of judgment on the verdict of the jury, the time within which to make the same has expired." It does not appear that the motion for a new trial was made after such expiration and entry. On the contrary, it affirmatively appears that it was made before such expiration and entry, it being stated, in folio 140 of the "case," that upon the coming in of the verdict defendants thereupon, "in open court, then and there moved for a new trial." The ground upon which the motion to dismiss is based, being then untrue in fact, the motion is denied.

In regard to defendants' objection to the question found in folio 57 of the case, it is enough to say that the answer is entirely irresponsive to it, so that, whether the question was properly allowed or not, its allowance was harmless. It would certainly be competent for plaintiffs, at the proper time, to rebut any testimony introduced by defendants to show that the original contract had been revoked or annulled, though it is apparent that for this purpose, (for which plaintiffs contend that the question was asked,) this question was by no means happy.

By the contract, for the breach of which this action is brought, the defendants agreed to sell to plaintiffs "their stock of goods in the City Drug-store * * * at the price said articles can be bought for in the city of Chicago on the second day of August, 1869, with 10 per cent. added." Plaintiffs contended that a certain file of prescriptions, which defendants had refused to deliver to them, were included in the "stock of goods" agreed to be sold as aforesaid.

It is not easy to perceive how, in view of the above conditions as to the price to be paid for the different articles comprising the stock, it could very well be claimed that the prescriptions were a part of the stock of goods, within the meaning of the contract. Aside, however, from this consideration, the offer of the plaintiffs was not to prove that the prescriptions were in fact a part of the "stock of goods," but that prior to the time of making the contract, and in the course of the previous negotiations, plaintiffs represented that the prescriptions were a part of the stock, would pass in a sale of the same, and were of a specified value. However pertinent this testimony might be, if a reformation of the contract were sought, we are of opinion that it was clearly inadmissible in this action. Unless the file of prescriptions was, in fact, part of the stock, (which the evidence did not tend to show,) the effect of admitting the representations would be to permit plaintiffs, by parol evidence, to add...