McAllister v. Welker

• Decision Date: 27 December 1888
• Citation: 39 Minn. 535,41 N.W. 107
• Parties: MCALLISTER v WELKER.
• Court: Minnesota Supreme Court

39 Minn. 535

41 N.W. 107

MCALLISTERvWELKER.

Supreme Court of Minnesota.

Dec. 27, 1888.

(Syllabus by the Court.)

1. Previous decisions followed, holding that a complaint will be liberally construed, upon a motion by defendant at the time of the trial of the action, and after answering, for judgment on the pleadings.

2. A designation of land as “the Ludwig Welker farm of 109 1/2 acres,” in certain sections named, may be taken as a sufficient description, and the addition of a further description, shown to be false, will not prejudice.

3. Undisputed testimony of the identity of a “farm” thus described, in two different instruments, the further descriptions (by governmental subdivisions) being in part not the same, held to justify a finding that the two instruments described the same land.

Appeal from municipal court of Minneapolis; BAILEY, Judge.

Action to recover commissions alleged to have been earned by plaintiff as defendant's agent in the sale of certain real estate. In his complaint plaintiff alleged “that on the 17th day of February, 1887, defendant gave him the exclusive sale of his (defendant's) farm, situated,” etc., “and agreed to give plaintiff five per cent. upon the first thousand dollars, and two and one-half per cent. on the balance of the purchase money; that on the 7th day of March, 1887, plaintiff sold said farm for defendant for the sum of $10,950, to one S. C. Ferris, who was ready and willing to purchase said farm on the terms of said defendant, whereby said plaintiff became entitled to the sum of three hundred and seven dollars and seventy-five cents, no part of which has been paid.” Defendant answered, specifically denying the allegations of the complaint, and alleging that on or about February 17, 1887, defendant, relying on plaintiff's representations, had signed a written instrument, which plaintiff represented to defendant to be a mere memorandum, containing only a description of defendant's farm, and the price at which he would sell the same; that if the instrument was, in fact, a contract or agreement of any kind relating to the sale of the land, it had been obtained fraudulently. Upon the trial, before the court without a jury, defendant moved for judgment on the pleadings, on the grounds that the complaint did not state a cause of action, and that plaintiff, by failing to reply, admitted the defense of new matter set up in the answer, which motion was denied. The instrument signed by defendant authorizing plaintiff, as his agent, to sell the land, and the contract of sale given by plaintiff to Ferris, were produced and offered in evidence. Judgment was ordered for plaintiff. Defendant appeals from an order denying a new trial.

J. N. Bearnes, for appellant.

C. F. Baxter, for respondent.

DICKINSON, J.

The defendant did not call in question the sufficiency of the complaint until the commencement of the trial, after he had answered. He then moved for judgment upon the pleadings. Under such circumstances, the complaint should be sustained, if, upon a liberal construction, a cause of action is disclosed. Kelly v. Rogers, 21 Minn. 146;Dunham v. Byrnes, 36 Minn. 106,30 N. W. Rep. 402;Malone v. Stone Co., 36 Minn. 325,31 N. W. Rep. 170. Under this rule, the complaint may be construed as showing that the sale for $10,950 was in accordance with the terms prescribed by the defendant. The motion for judgment also involved the question whether the defendant was entitled to such a judgment for want of a reply to the allegations of the answer, as to the execution by the defendant of a certain written instrument having been fraudulently procured. The action of the court in denying the motion was justified, because, if for no other reason, the allegations of the answer were insufficient to connect that instrument with anything alleged in the complaint. The written instrument, as given in the record...