Peteler Portable Ry. Manuf'g Co. v. Nw. Adamant Manuf'g Co.

• Decision Date: 21 January 1895
• Citation: 60 Minn. 127,61 N.W. 1024
• Parties: PETELER PORTABLE RAILWAY MANUF'G CO. v. NORTHWESTERN ADAMANT MANUF'G CO.
• Court: Minnesota Supreme Court

60 Minn. 127

61 N.W. 1024

PETELER PORTABLE RAILWAY MANUF'G CO.

v.NORTHWESTERN ADAMANT MANUF'G CO.

Supreme Court of Minnesota.

Jan. 21, 1895.

(Syllabus by the Court.)

Assignments of error as to the rulings of the court on the admission of evidence considered and disposed of, with reference to the fact that appellant must be bound on appeal by its attitude and position voluntarily taken on the trial, as to the nature of the action. Held, that the evidence was ample to sustain a verdict in defendant's favor.

Appeal from district court, Hennepin county; Henry G. Hicks, Judge.

Action by the Peteler Portable Railway Manufacturing Company against the Northwestern Adamant Manufacturing Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Young, Fish & Dickinson, for appellant.

John H. Nickell, for respondent.

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 facts 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...