State v. Schurz
| Decision Date | 03 July 1919 |
| Docket Number | No. 21338.,21338. |
| Citation | 143 Minn. 218,173 N.W. 408 |
| Parties | STATE v. SCHURZ et al. |
| Court | Minnesota Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Lyon County; Frank Clague, Judge.
Action by the State of Minnesota against Charles Schurz and another. Plaintiff's motion to strike certain allegations from the answer and for judgment on the pleadings granted, and defendants appeal. Reversed.
In an action by the state to recover upon a promissory note given for binding twine under a contract executed pursuant to section 9313, Gen. St. 1913, held, that the court below erred in striking from the answer allegations of a modification of the contract pursuant to which the note was given, and for judgment upon the pleadings as asked for in the complaint. Seward & Molle, of Marshall, for appellants.
John Everall and Clifford L. Hilton, both of St. Paul, for the State.
During the years 1917 and 1918 the defendant Charles Schurz was engaged in the implement business at Amiret, this state, during which time he handled farm machinery and binding twine manufactured at the state prison. In October, 1917, he entered into a contract with the warden of the prison to purchase 40,000 pounds of binding twine for the season of 1918, and to pay cash or give a satisfactory note therefor due November 1, 1918, without interest, prior to the shipping of the twine. On May 2, 1918, defendants executed their joint promissory note therefor, payable to C. S. Reed as warden, in the sum of $8,800. On the 1st of June, 1918, a carload of twine was shipped from the prison to Charles Schurz pursuant to contract. At that time Thomas Hunting was in the employ of the plaintiff in the handling of its output of twine and implements. Upon the arrival of the car of twine at Amiret, Hunting was there. Schurz removed 20,000 pounds of twine from the car, and permitted Hunting to ship the balance to Wilder, Minn., where he sold it to Malchow Bros., receiving therefor a draft payable to himself for $3,355, which he appropriated to his own use.
In the answer the defendants admit the giving of the note as alleged in the complaint, and as an affirmative defense thereto allege:
‘That shortly after the 1st day of June, 1918, and after the said twine had arrived in car at said Amiret, Minn., and before the said twine was removed from said car, this plaintiff, by and through its duly authorized agent, Thomas Hunting, represented and stated to the said Charles Schurz that there was a considerable shortage of twine for the said season of 1918, and that the output of twine by this plaintiff was insufficient to supply the dealers and farmers of the state of Minnesota for the season of 1918, and that an account thereof it was the desire of this plaintiff that the said Charles Schurz should reduce the amount of his said order under said contract to 20,000 instead of 40,000 pounds, and allow plaintiff to reship the extra 20,000 pounds to other dealers and farmers, and in consideration of the said Charles Schurz so reducing his said order under said contract from 40,000 pounds to 20,000 pounds, and allowing plaintiff to so reship the said extra 20,000 pounds of said twine, this plaintiff, by its said duly authorized agent, then and there promised and agreed to credit these defendants as payment upon said promissory note, the amount of the fixed or contract price for the twine so reshipped; that thereupon, induced by said statements and representations and relying upon said promise and agreement, the said Charles Schurz consented to the reduction of his said order under said contract from the said 40,000 pounds to the said...
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