Starbuck v. Dunklee

• Decision Date: 01 January 1865
• Citation: 10 Minn. 136
• Parties: GEORGE C. STARBUCK vs. JOHN A. DUNKLEE.
• Court: Minnesota Supreme Court

10 Minn. 136

GEORGE C. STARBUCKvs.

JOHN A. DUNKLEE.

Supreme Court of Minnesota.

Appeal from order of district court, Ramsey County.

The complaint sets up a contract by which defendant agreed, in consideration of $625 paid him by plaintiff, to transport 350 cords of wood for plaintiff; alleges that defendant took possession of 348 cords, transported and delivered to plaintiff 291¼ cords, and converted to his own use 57¾ cords — to recover the value of which the action is brought.

The answer admits the making of the contract, but alleges that the fifth day of December, 1863, the day on which the contract was made, was Sunday; admits that defendant took possession of a large quantity of wood, all that plaintiff had, but states that he has no knowledge nor information sufficient to form a belief as to the quantity; alleges that transporting the wood delivered to plaintiff was worth $625; and denies each and every allegation in the complaint, except so far as the court may construe the statements in the answer as admissions.

Plaintiff moved to strike out the allegation in the answer stating the value of the transportation, the denial of knowledge or information, etc.; and also the denial, except so far as the court may construe the allegations as admissions.

The motion was granted.

Points and authorities for appellant: —

1. The plaintiff sets forth a contract. The defendant admits the making of the contract, but states that it was made on Sunday; thus entirely annulling its force and effect as a contract; the defendant neither acknowledges any liability nor claims any benefit under that contract, nor is the plaintiff entitled to the one or subject to the other. Finney v. Callendar, 8 Minn. [41]; Brimhall v. Van Campen, 8 Minn. [13].

2. The court erred in supposing that the defendant claimed that he had earned the whole "contract price." He only claims that he has transported a large quantity of cord-wood, and that it was worth the amount that the plaintiff alleges that he has paid to him. The defendant repudiates the obligations of the contract in toto; he makes no allegations in his answer that he has "fulfilled the contract."

3. The defendant has couched his denials of the quantity of wood transported, in the form prescribed and allowed by the statute. The court has no right to compel the defendant to commit perjury by stating that positively as a fact, when he swears that he does not know whether the allegation be true or false. Of what possible benefit could it be to the plaintiff for the defendant to admit that the quantity of wood was 291¼ cords? Such an admission, even if the defendant knew it to be true, would not aid the plaintiff in proving his case. The court indulges in a violent supposition or presumption when it assumes that the defendant, in a portion of three months, loaded upon his barge, "with his own hands," 291 cords of wood, and transported and delivered the same from Carver to St. Paul. There is nothing in the papers from which an inference can be drawn that the defendant ever saw a stick of the wood, or that he ever knew or heard of its being measured by any person. Men often perform by the hands of agents and servants, and the business of transporting large quantities of cord-wood on the Minnesota River is not an exception. Qui facit per alium, facit per se. There can be no presumption that the defendant had the least personal knowledge in the premises.

Points and authorities for respondent: —

1. It is wholly immaterial in this case what the labor of the appellant in transporting the cord-wood was worth. This action is not brought to recover a quantum meruit for services, but to recover the value of 57¾ cords of wood of the plaintiff, converted to his own use by the defendant in April, May, and June, 1864, and the complaint set sforth all the facts. Comp. Stat. 541, § 70; id. 542, § 76; 1 Code R. 84; 2 Code R. 18.

2. The answer admits expressly the taking of the cord-wood by the defendant below; and he is presumed to know, and cannot deny any knowledge of, the quantity taken by him. A party cannot deny knowledge or information as to his own acts, and acts done by an agent are equally within the rule, and the principal is presumed to know of them. 11 How. Pr. R. 163; 1 Abbott Pr. R. 187, 254; 10 How. Pr. R. 19; 2 E. D. Smith, 48; id. 50; 1 Code N. S. 204; 8 How. Pr. R. 28; 12 How. Pr. R. 153; 4 Sand. 708; Van Sant. Pl. 440, 443.

3. The defendant below "cannot be allowed to deny all `material' allegations in the complaint," or all such allegations as shall not be held by the court to be admitted in some future and imaginary construction of his answer. This is worse than the denial of a conclusion of law; since it attempts to deny a conclusion, not yet, and which may never be, arrived at, or had. Hypothetical denials are always bad in pleading. Van Sant. Pl. 529; 9 How. Pr. R....