Peteler Portable Railway Manufacturing Company v. Northwestern Adamant Manufacturing Company

• Decision Date: 21 January 1895
• Docket Number: 9134
• Citation: Peteler Portable Railway Manufacturing Company v. Northwestern Adamant Manufacturing Company, 61 N.W. 1024, 60 Minn. 127 (Minn. 1895)
• Parties: PETELER PORTABLE RAILWAY MANUFACTURING COMPANY v. NORTHWESTERN ADAMANT MANUFACTURING COMPANY
• Court: Minnesota Supreme Court

61 N.W. 1024

60 Minn. 127

PETELER PORTABLE RAILWAY MANUFACTURING COMPANY v. NORTHWESTERN ADAMANT MANUFACTURING COMPANY

No. 9134

Supreme Court of Minnesota

January 21, 1895

Action in the district court for Hennepin county for damages caused by the fall of a factory building leased to defendant by plaintiff. At the trial the judge charged the jury that the action was not one on the lease, but to recover damages occasioned by the negligence of defendant. The jury returned a verdict for defendant. Appeal by plaintiff from an order of the court, Hicks, J., denying its motion for a new trial. Affirmed.

Order affirmed.

Young Fish & Dickinson, for appellant.

John H Nickell, for respondent.

OPINION

COLLINS, J.

Upon the trial of this case below, counsel for plaintiff (appellant), not the counsel now appearing, however asserted, again and again, that it was not an action to recover upon the agreements contained in the lease, but was wholly in tort, based upon defendant's alleged negligence in overloading the floors of the building; thereby causing them to give way, and the walls to collapse. The rulings on the admission of testimony, excepted to by counsel, which we are now called on to review, were made with reference to this position as to the nature of the case, and that it was not an action upon contract. And the charge to the jury, to which the same counsel expressly stated they had no exceptions to take, was distinct and unequivocal upon the point. In fact it would be difficult to find a case in which counsel more deliberately took a position as to its character as set forth in the complaint, or were more persistent in maintaining it, than the one now before us. The appellant is therefore bound by the record which it made as to the nature of the action. It cannot be allowed to try the cause as arising solely out of defendant's tort, inducing the trial court to accept its views, -- thus compelling its adversary to meet its theory, -- and then, in the exigencies of an appeal, shift position, that the rulings may be tested as if the action was on contract only. With the fact in mind that plaintiff's counsel are now precluded from adopting a theory radically inconsistent with that which they were successful in inducing the trial court to accept and rely upon, we will proceed to consider the assignments of error.

The first refers to the competency of plaintiff's witness Ludlum to give an expert...