Dau v. Burnham

193 N.W. 33, 155 Minn. 498, 1923 Minn. LEXIS 809

• Court: Supreme Court of Minnesota
• Decided: April 6, 1923
• Docket: No. 23,296
• Status: Published

Opinion

PER CURIAM.

Appeal from an order denying defendant’s alternative motion for judgment or a new trial.

The complaint alleged a sale and delivery of corn and nonpayment of the purchase price. The answer was a general denial. The specific defense was that the corn had ibeen sol'd to a man named Gray instead of to the defendant. Our examination of the record has satisfied us that there was sufficient evidence to prove that the corn was sold to defendant and not to Gray and to support the verdict in plaintiff’s favor. This disposes of defendant’s principal contention upon this appeal.

The complaint alleged a sale in the month of October, 1920. The evidence was that the terms of sale were not agreed upon until a’bout a month later than the date alleged. This was an immaterial variance. Hayden v. Albee, 20 Minn. 143 (159); Pennington v. Roberge, 122 Minn. 295, 142 N. W. 710.

Order affirmed.