Dodge v. M'Mahan

• Decision Date: 24 May 1895
• Docket Number: Nos. 9295 - (145).,s. 9295 - (145).
• Citation: 61 Minn. 175
• Parties: W. O. DODGE and Others v. THOMAS B. McMAHAN.<SMALL><SUP>1</SUP></SMALL>
• Court: Minnesota Supreme Court

61 Minn. 175

W. O. DODGE and Others v. THOMAS B. McMAHAN.¹

Nos. 9295 - (145).

Supreme Court of Minnesota.

May 24, 1895.

Appeal by defendant from an order of the district court for Marshall county, Ives, J., denying a motion for a new trial. Affirmed.

Brown & Carr, for appellant.

Steele & Rees, for respondents.

MITCHELL, J.

This was an action to recover money "loaned to the defendant, and paid for his use and benefit." The answer was a general denial. The plaintiffs offered evidence tending to prove that the defendant employed them, as commission men, to buy for him 5,000 bushels of wheat for future delivery, on a margin of five cents per bushel, and at the same time requested them, if this margin should be exhausted by a decline in the market, not to allow him to be "sold out," but to put up the additional margins for him, and then advise him or draw on him for the amount; that the amount sued for was money advanced by plaintiffs, in pursuance of this request, to keep good the margins on defendant's wheat. In the absence of any motion to make the complaint more definite and certain, or to compel plaintiffs to elect whether they claimed for money loaned or for money advanced and paid out for defendant at his request, there was no error in admitting the evidence. There was no fatal variance between the allegations of the complaint and the proof.

2. The court excluded certain evidence offered by defendant for the alleged purpose of proving that the transaction was not an actual purchase of wheat, but a mere wager by him on the future price of the commodity. The evidence was properly excluded for two reasons: First, it went merely to the unexpressed intention or motive of defendant himself, of which plaintiffs had no knowledge, either when they bought the wheat or when they made the advances for him; second, it was inadmissible, under the pleadings. Authorities may be found, even in some of the code states, to the effect that, under a mere denial, evidence of any fact may be given in evidence that would go to the original validity of the contract sued on, — that is, which, although admitting the making of the contract, would show that, when made, it was for some reason invalid; as, for example, that it was made on Sunday, or that it was a gambling or wagering contract. But this rule is not in accordance with either the spirit of the reformed procedure or the decisions of this court. The correct rule is that, under a denial, the defendant is at...