Elliott v. McAllister

• Decision Date: 16 October 1908
• Docket Number: 15,883 - (138)
• Citation: 117 N.W. 921,106 Minn. 25
• Parties: J. K. ELLIOTT and Another v. T. E. McALLISTER
• Court: Minnesota Supreme Court

117 N.W. 921

106 Minn. 25

J. K. ELLIOTT and Another v. T. E. McALLISTER

Nos. 15,883 - (138)

Supreme Court of Minnesota

October 16, 1908

Action in the district court for Hennepin county to recover $659.86 amount alleged to have been paid out and for commissions earned by plaintiffs as agents for defendant in the purchase and sale of wheat. The case was tried before Brooks, J., who directed a verdict in favor of defendant. From an order denying plaintiffs' motion for a new trial, they appealed. Affirmed.

SYLLABUS

Pleading -- Answer.

In this, an action to recover for moneys advanced and commissions on purchases and sales of wheat for the defendant by the plaintiffs as grain brokers, it is held that neither by the answer nor by the defendant's testimony was the plaintiffs' alleged cause of action admitted.

Benton Molyneaux & Morley, for appellants.

Mead & Robertson, for respondent.

OPINION

START, C.J.

This action was brought in the district court of the county of Hennepin to recover from the defendant the sum of $659.86 for moneys paid and commissions earned by the plaintiffs in the purchase and sale of wheat for the defendant as his agent. At the close of the evidence the trial court directed the jury to return a verdict for the defendant, which was done, and the plaintiffs appeal from an order denying their motion for a new trial.

The only question raised by the assignment of errors is whether the trial court erred in directing a verdict for the defendant. The plaintiffs in their brief urge, in support of their contention that the instruction was erroneous, that the answer admitted their cause of action as alleged in the complaint, and, further, that the defendant admitted it on the trial in giving his testimony. If either of these claims is justified by the record, it follows that the instruction was erroneous, and that there must be a new trial of the cause; but, if neither claim is sustained by the record, the order appealed from must be affirmed, for it is not claimed by plaintiffs that, independent of the alleged admissions, the evidence made a case for the jury.

The first question, then, is: Does the answer admit the plaintiffs' cause of action? After alleging that the plaintiffs were grain brokers, doing business as such, and the rules and methods of business of the Minneapolis Chamber of Commerce, the complaint alleged that plaintiffs, at the request of the defendant, bought and sold, as such brokers, for him, wheat at various times from May 26 to June 13, 1900, inclusive, as shown by a detailed statement set out in the complaint, giving dates of purchase and sale, number of bushels and prices, and showing a net loss of $593.75. The complaint also alleged that the plaintiffs, at the request of the defendant, advanced and paid for him on such sales the sum of $593.75, the amount of such net losses, and, further, that the commissions on such transactions amounted to $62.50.

The answer denied each and every allegation of the complaint not expressly admitted in the answer. It then affirmatively alleged that in the months of May and June 1900, the defendant employed the plaintiffs to make purchases and sales of wheat for future delivery, with the mutual understanding and agreement that no...