I. M. OLSEN, Justice.
Plaintiff appeals from a judgment in favor of defendant, adjudging that plaintiff take nothing by the action.
The case came on for trial in the district court of Ramsey county on October 29, 1935. After plaintiff's counsel had made
his opening statements to the court and jury, defendant's counsel moved for a directed verdict on the pleadings and the opening statements so made. There was some discussion between the court and counsel, and statements and explanations as to what the opening statements of plaintiff's counsel were. The court thereupon directed the jury to return a verdict in favor of the defendant. Such verdict was returned and judgment thereafter entered thereon. The discussion had and the statements and explanations as to what was said by plaintiff's counsel in his opening statements were taken down by the court reporter and transcribed, and are a part of the settled case.
The complaint alleges that plaintiff was employed by defendant from April 7, 1928, to April 25, 1933, at an agreed rate of pay per hour while at work; and that it was further agreed that, while he should be on the extra list during such employment, he would be guaranteed a minimum wage of $3.50 per day, provided he would report for duty at all times when required to do so; that, during his
said employment, the defendant on numerous days failed to pay him said minimum wage of $3.50 per day; and that, by reason thereof, there is due and owing to him $550 for such wages.
The answer admits that plaintiff was employed by it during the time stated in the complaint; denies that there was any agreement to pay plaintiff a minimum wage of $3.50 per day while he was on the extra list; alleges that Exhibit A, attached to the answer, is a correct copy of the application and agreement under which plaintiff was employed, and sets forth the terms and conditions of his employment. Exhibit A reads as follows:
"In consideration of being employed by Minneapolis Street Railway Company, The Saint Paul City Railway Company, The Minneapolis and St. Paul Suburban Railroad Company, and The Minnetonka and White Bear Navigation Company, I agree to and with said Companies as follows:
"I agree to work under instructions on and during trial period at least 140 hours and such additional time in excess thereof as the above named Companies may consider necessary.
"I understand that the wages to be paid for the trial period will be 21 cents per hour for a maximum of 250 hours.
"I further understand that the wages to be received for the trial period are for actual platform time spent under charge of instructing trainmen, and that if appointed to the regular train service I am to receive the total compensation for the said trial period after having worked at least 40 hours.
"In consideration of the instruction received during any or all of the trial period above mentioned, I agree that if I leave the tentative employ of the Companies during said trial period, or if during or after conclusion of said trial period, the Companies do not see fit to regularly employ me, I shall receive no wages and shall have no claim against the Companies for my time and work during said trial period.
"I agree to deposit $2.00, covering the cost of property loaned to me at time of receiving my student appointment, this amount to be refunded to me after I have worked 40 hours in the regular train service, or have returned the above mentioned property.
"I further agree and understand that if I resign from the service of any of said Companies within one year after having been appointed to the regular train service, the wages paid me for the trial period are to be deducted from the wages due me at the termination of my employment, and that I shall have no claim against said Companies, or any of them for services rendered or expense incurred by me during said trial period.
"I further agree that my employment may be terminated by any of the above said Companies at its election at any time.
"I further agree that I will make no charge, claim or demand against said Companies for the time spent in reporting for duty at the request of said Companies or any foreman or agent thereof, or while waiting after so reporting before actually beginning work.
"I understand and agree that wages are to be paid to me only for such time as I am actually engaged in operating or running a car for said Companies or in actually doing such other work as may be assigned to me, by said Companies, computed at the following rates, change to the next higher rate to be made at the beginning of the pay roll immediately following the date when such promotion is due:
1st year in service.....50 cents per hour
2nd year in service.....53 cents per hour
3rd year and thereafter 55 cents per hour
"That these wages are satisfactory to me and if I am employed by any of the above
mentioned Companies, I agree to work contentedly, study carefully, and comply faithfully with all their rules, regulations, orders and bulletins.
"I also agree to provide myself with the regulation uniform, in accordance with the rules and regulations of said Companies, within sixty (60) days after being appointed to the regular train service.
"I have been informed and understand that I am to be employed by Minneapolis Street Railway Company, The Saint Paul City Railway Company, The Minneapolis and St. Paul Suburban Railroad Company, and The Minnetonka and White Bear Navigation Company, and may be transferred from one to the other, and that
I am to receive compensation for the total services for the four Companies through voucher or check from The Transit Supply Company, and in said employment I understand I am the co-employee with all other employees of the above named Companies, and assume all risks incident to the negligence of such co-employees.
"I understand and agree that, if it is found during my trial period or during the twelve months immediately following my appointment to the regular train service that I have made any false statement in this application, the Company shall have the right to discharge me and to deduct from any wages then due me the wages paid or to be paid me for the trial period.
"I Have Read and Clearly Understand the Foregoing, and Am Willing to Abide by Each and Every Provision or Part Thereof.
"Signed
"Daniel Oien
"Battle Lake, Minn
"Witness
"George J. Petrach
"Date April 3, 1928.
"Recommended by __________."
The answer further alleges that on the 10th and 25th days of each month during the employment defendant paid to plaintiff the semimonthly wages earned by him in the next preceding half month, at the hourly rate provided in the contract of hiring, and at times, as a gratuity, paid him certain bonuses in addition to his wages; that all payments were so made in accordance with the pay rolls setting forth in detail the manner in which the amounts thereof were computed, and that such pay rolls were available to and open to the inspection of the plaintiff; that all payments were made by check, form of which is attached, and each of which checks contained a receipt in full for services for the half month therein specified; that plaintiff accepted, indorsed, and cashed each of said checks; that plaintiff is estopped by accepting such checks and indorsing same, with the receipts therein contained.
The relevant parts of the reply are: A general denial of the allegations of the answer, except so far as it admits allegations of the complaint or allegations thereinafter admitted or qualified. The reply further alleges, in substance, that, if plaintiff executed the
application for employment, Exhibit A attached to the answer, such agreement was only a part of the contract of employment. The reply then sets out an alleged communication from defendant, in the form of a letter (probably a printed form) in words and figures as follows:
"Minneapolis Street Railway Company,
The St. Paul City Railway Company,
The Minneapolis & St. Paul Suburban Railway Company and The Minnetonka & White Bear Navigation Company
"Dear Sir:
"Your recent application relative to a position in the train service has received favorable consideration. If you are desirous of securing a position either as motorman or conductor, I would be pleased to have a personal interview with you at the office of the Employment Bureau. If you are unable to report immediately, kindly inform this department by letter or telephone at once.
"For your information, would say student trainmen receive 21 cents per hour during their instruction period, which consumes approximately three to four weeks. Thereafter the wages are as follows:
1st year in service....50 cents per hour
2nd year in service....53 cents per hour
3rd year in service and
thereafter...........55 cents per hour.
"Trainmen while on the extra list are guaranteed a minimum wage of $3.50 per day, provided they report for duty at all times when required to do so.
"The requirements are that applicant have good vision and hearing and no physical infirmities, as it is required from all applicants to pass a thorough physical examination
by the company Doctor before being accepted for train service.
"Yours truly,
"Supt. of Employment.
"Kindly present this letter at the Employment Bureau."
The reply further alleges that, after he...
