Trainor v. Worman

• Decision Date: 27 June 1885
• Citation: 33 Minn. 484
• Parties: FELIX TRAINOR <I>vs.</I> JOHN A. WORMAN.<SMALL><SUP>1</SUP></SMALL>
• Court: Minnesota Supreme Court

33 Minn. 484

FELIX TRAINOR vs. JOHN A. WORMAN.¹

Supreme Court of Minnesota.

June 27, 1885.

Appeal by defendant from an order of the district court for Hennepin county, Koon, J. presiding, refusing a new trial.

Edward Savage, for appellant.

Byrnes & Byrnes and T. E. Byrnes, for respondent.

GILFILLAN, C. J.

The complaint alleges a contract between plaintiff and defendant by which the former agreed to furnish certain material and perform certain labor towards the erection of certain dwelling-houses for the latter, and for which the latter agreed to pay the former $8,253, of which sum $450 is unpaid. It alleges full performance by plaintiff of the contract according to its terms. The answer admits that there was a contract in regard to the building of the houses, but denies each and every other allegation in the statement of the cause of action above set forth. It then alleges two counterclaims arising upon the same contract: one upon a clause that plaintiff should complete the work by September 10, 1882, and in case of failure so to do he should allow defendant $15 for every day after said date that might be required to complete the work, the same to be deducted from the consideration of the contract, and alleging that the work was not completed till November 15, 1882; and the other upon a clause in the contract that if plaintiff failed or unreasonably delayed to provide the material and labor in the judgment of the architect named in the contract requisite to complete the work by September 10th, the defendant might, after notice to plaintiff, provide the labor and material, and prosecute the work to its completion, and deduct the cost of the same from the consideration of the contract, and alleging such failure and notice, and that defendant provided such labor and material, and prosecuted the work to its completion, at a cost of $200. The answer demands judgment for $750.

The reply admits the clauses of the contract alleged, and that the work was not completed till November 15, 1882, and alleges that the delay was caused by the acts of the defendant, and that, while he was being so delayed by the defendant, the latter agreed that plaintiff should have all the additional time necessary to complete the work, and that he would release him from the agreement to complete it by September 10th, and from the penalty of $15 a day. This the defendant claims is a departure in pleading; that under the complaint the plaintiff relies upon, and in order to maintain his action must prove, a performance of the contract according to its terms, while in the reply he relies upon an excuse for non-performance; the theory of the defendant being, evidently, that upon the facts appearing by the pleadings the plaintiff must, in order to recover anything, establish the excuse for non-performance alleged in the reply, and that would be a departure from the complaint.

This might be true if the defendant had not, by his answer, waived the objection that the plaintiff had not performed, so far as performance was necessary as a condition of the right to bring the action. As long ago as Mason v. Heyward, 3 Minn. 116, (182,) it was held that, by pleading a counterclaim upon a breach of the contract which is the subject of the action, the defendant admits a claim against him on the part of the plaintiff, which he avoids by his counterclaim, the court saying: "By pleading his counterclaim, he consents to put in issue all the equities between the parties. If he insists that the court shall examine the question as to the amount of damage he has sustained from the non-performance of the contract by the plaintiffs, rather than rest his case simply on the ground of non-performance, he should be held to the issue he has tendered, whether he be benefited or prejudiced by the finding." That case was followed in Whalon v. Aldrich, 8 Minn. 305, (346;) Koempel v. Shaw, 13 Minn. 451, (488;) Steele v. Etheridge, 15 Minn. 413, (501;) Paine v. Sherwood, 19 Minn. 270, (315,) and Paine v. Sherwood, 21 Minn. 225. As the defendant, by setting up his counterclaims, disabled himself to claim non-performance at the day by plaintiff as a bar to the action, the allegations in the reply, showing excuse, are immaterial to plaintiff's right of action, though they are material upon the matter of the counterclaims. The only office they serve is to let in proof in avoidance of the counterclaims. This disposes of the points made on the denial of the motion for a nonsuit, and the refusal of defendant's fourth request to charge.

Defendant, in his first request, asked an instruction to the jury "that a mere consent by the defendant tha...