Vassau v. Campbell

• Decision Date: 13 February 1900
• Citation: 79 Minn. 167,81 N.W. 829
• Parties: VASSAU et al. v. CAMPBELL et al.
• Court: Minnesota Supreme Court

79 Minn. 167

81 N.W. 829

VASSAU et al.

v.CAMPBELL et al.

Supreme Court of Minnesota.

Feb. 13, 1900.

Appeal from district court, Polk county; William Watts, Judge.

Action by Charles Vassau and Frank E. Vassau against James Campbell and Louis Soderberg. Verdict for defendants. From an order denying a new trial, plaintiffs appeal. Reversed.

Syllabus by the Court

1. The certificate of the trial judge upon the return of a record into this court is not necessarily conclusive, but resort may be had to the entire record to ascertain whether it contains all the evidence.

2. A certificate of the trial judge that ‘the case is a true statement of the proceedings, * * * and the same are hereby made the settled case,’ held, in connection with the record returned herein, to show that the whole evidence is before this court for review.

3. Where a contract provides that the tender of a bunch of cattle of a certain age shall be made at a specified time, an offer of cattle older than the specified age, though perhaps of more value, will not satisfy the terms of such contract.

4. Where it is provided that a bunch of cattle of average quality shall be tendered between a maximum and minimum condition, at least more than one-fourth should be above the minimum grade, to comply with the terms of the contract.

5. The evidence in this case is insufficient to sustain the verdict. Van R. Brown, for appellants.

B. S. Bennett, H. Steenerson, and W. E. Rowe, for respondents.

LOVELY, J.

This action is for damages for the alleged failure by defendant to deliver to the plaintiffs ‘50 head of good, average cattle,’-yearlings not less than 10 months old, raised in the Thirteen Towns and vicinity,-according to the terms of a written contract, under which the plaintiffs had paid $250, and afterwards had paid $7.50 as a consideration for a short extension. The defense was that at the time agreed upon for delivery of the cattle the defendants properly tendered a bunch of cattle that complied with the terms of the contract, and that plaintiffs refused to accept them, which was denied by plaintiffs, who contended that the cattle were not of the quality bargained for. The case was tried to a jury, who returned a verdict for defendants. Upon motion therefor, the trial court refused a new trial, and plaintiffs appeal from the order denying the same.

The only assignment of error which we can consider involves the sufficiency of the evidence to sustain the verdict, and defendants' counsel at the outset denies that the certificate of the trial court upon the return warrants this inquiry, for the alleged reason that it does not show that all the evidence is transmitted to this court for review. The objection is predicated on the certificate of the trial judge, which is in the following words: ‘I hereby certify that the hereto attached proposed case and amendments allowed as aforesaid are a true statement of the proceedings and evidence in the above-entitled action, and the same are hereby made the settled case herein.’ The point made is that the certificate of the judge does not in so many words declare that all the evidence is included in the case. We hold that it must appear that all the evidence is returned to enable us to review its sufficiency to sustain the verdict, but it does not follow that the judge's certificate is necessarily conclusive as to that fact. Acker Post v. Carver, 23 Minn. 567;Coleman v. Reierson, 36 Minn. 222, 30 N. W. 811. The whole record may be...