Rosby v. St. Paul, Minneapolis & Manitoba Railway Company

• Decision Date: 30 June 1887
• Citation: 33 N.W. 698,37 Minn. 171
• Parties: Ole J. Rosby v. St. Paul, Minneapolis & Manitoba Railway Company
• Court: Minnesota Supreme Court

33 N.W. 698

37 Minn. 171

Ole J. Rosby v. St. Paul, Minneapolis & Manitoba Railway Company

Supreme Court of Minnesota

June 30, 1887

Appeal by defendant from an order of the district court for Polk county, Stearns, J., presiding, refusing a new trial after a verdict for plaintiff.

Order affirmed.

R. B Galusha and R. A. Wilkinson, for appellant.

H Steenerson, for respondent.

OPINION

Mitchell, J.

This action was brought to recover damages for breach of a contract alleged to have been made by defendant with plaintiff to transport a car-load of household goods and live-stock from Minnesota Transfer to Beltrami, in Polk county. The breach alleged was that defendant transported the car to Larimore, Dakota, instead of Beltrami, thereby delaying the plaintiff in reaching his destination, and causing him expense in transporting his property from Larimore to Beltrami, and causing injury of the stock from being so long confined upon the car. The answer denied the making of any such contract, but alleged the making of a written contract with defendant for the transportation of the car to Larimore. This contract, signed by both parties, was set out as an exhibit to the answer. The plaintiff in reply admitted that he signed this writing, but averred that he was induced to do so through the fraud and deceit of defendant's agent, who made it out, and falsely read and represented it as a contract for the transportation of the car to Beltrami; that, relying upon the false and fraudulent representations, and being unable to read it himself, he signed it, supposing it to be what it was represented to be, and what their actual agreement was, -- a contract for the transportation of the car to Beltrami.

1. The first two assignments of error are based upon the idea that the reply is a departure from the complaint. A departure is a statement of matter in a subsequent pleading which is not pursuant to the previous pleading of the same party, and which does not support and fortify it. This reply, reduced to its lowest denomination, is to the effect that the contract was just as alleged in the complaint; that the writing set up in the answer is not the contract in fact made; that plaintiff was induced to sign it by the false and fraudulent representations of defendant as to its contents. This is not a departure. On the contrary, it fortifies and supports the allegations of the complaint by avoiding the new matter set up in the answer. Estes v. Farnham, 11 Minn. 312, (423;) Trainor v. Worman, 34 Minn. 237, (25 N.W. 401;) Johnson v. Hillstrom, ante, p. 122.

2. It appears that the car was transported by the Minneapolis & St Louis Railway Company from Twin Lakes, Iowa, to the Minnesota Transfer. At this point there is a corporation called the Minnesota Transfer Company, which receives and transfers the freight to and from the five...