Trovatten v. Hanson

• Decision Date: 14 April 1927
• Docket Number: No. 25961.,25961.
• Citation: 213 N.W. 536,171 Minn. 130
• Parties: TROVATTEN v. HANSON.
• Court: Minnesota Supreme Court

213 N.W. 536

171 Minn. 130

TROVATTEN v. HANSON.

No. 25961.

Supreme Court of Minnesota.

April 14, 1927.

Appeal from District Court, Yellow Medicine County; Harold Baker, Judge.

Replevin by J. G. Trovatten against C. O. Hanson. Verdict for defendant. From an order granting judgment for plaintiff pursuant to an alternative motion for judgment non obstante or a new trial, defendant appeals. Reversed.

Charles L. DeReu, of Marshall, for appellant.

Daly & Barnard, of Renville, for respondent.

WILSON, C. J.

Appeal from an order granting judgment pursuant to an alternative motion for judgment non obstante or a new trial.

The action was in replevin. The complaint alleges plaintiff's ownership in general terms. The answer contains a general denial, and specific defenses, and alleges that defendant executed a note secured by a chattel mortgage on the property involved, and that plaintiff claimed the property by virtue of a renewal of said note and mortgage. There is no reply. Over the objection of plaintiff, defendant was permitted to prove payment.

When a plaintiff alleges title generally to the property involved — not indicating definitely the source of his title — the defendant may under a general denial attack the contract or instrument upon which plaintiff relies to prove title. Adamson v. Wiggins, 45 Minn. 448, 48 N. W. 185. A defendant may usually under a general denial meet plaintiff's proof by showing that he is not guilty of the accusation made in the complaint. Dodge v. McMahon, 61 Minn. 175, 63 N. W. 487; Nichols & Shepard Co. v. Minn. Thresher Mfg. Co., 70 Minn. 528, 73 N. W. 415; Atwater v. Spalding, 86 Minn. 101, 90 N. W. 370, 91 Am. St. Rep. 331. Facts which tend to directly contradict and dispute the allegations and proofs of the adversary may be proved under a general denial, and need not be specifically pleaded. Hanson v. Diamond Iron Mining Co., 87 Minn. 505, 92 N. W. 447. But this is not the rule where plaintiff pleads the source of his title. Dunnell's Digest, § 8412. The answer in this case disclosed the source of plaintiff's title. Without a reply, this stood as established. This made it necessary for defendant to plead payment if that was his defense. He did not do so. It is just as much new matter as illegality of contract which must be pleaded. Banner Grain Co. v. Burr Farmers' E. & S. Co., 162 Minn. 334, 202 N. W. 740. The pleadings brought the matter of payment within the field of confession and avoidance. Evidence of payment was erroneously received. The verdict probably rested upon the theory of payment having been made.

If we construe the record rightly, the trial court granted judgment upon the theory that he had erroneously received the evidence of payment. Judgment will be ordered non obstante only when the evidence is conclusive against the verdict. Here it was not. Judgment will not be ordered for error in either law or procedure committed at the trial. Bosch v. C., M. & St. P. Ry. Co., 131 Minn. 313, 155 N. W. 202; Hoggarth v. M. & S. L. R. Co., 138 Minn. 472, 164 N. W. 658; Wampa v. Lyshik, 144 Minn. 274, 175 N. W. 301. In such case the remedy is a new trial, not judgment contrary to the verdict. When it appears probable that a party has a good cause of action, although technically not correctly pleaded,...