Maul v. Steele

104 N.W. 4, 95 Minn. 292, 1905 Minn. LEXIS 673

• Court: Supreme Court of Minnesota
• Decided: June 23, 1905
• Docket: Nos. 14,363—(114)
• Status: Published

Opinion

JAGGARD, J.

In this case the court found a state of facts upon which the plaintiff was entitled to recover, and directed an amendment to the pleadings to conform to such facts. These findings were reasonably sustained by the evidence. This appeal was based on the proposition that there was not a mere variance between the pleadings and proof, but a failure of proof of the cause of action set up in the complaint, which could not be cured by amendment. The only material objection to evidence offered was that one question was “incompetent, irrelevant, and immaterial.” This objection was too general in character to avail on this appeal. Moreover, testimony was introduced by both plaintiff and defendant concerning every essential element of the case. The parties having litigated by consent the issues upon which the trial court based its findings, the court was within its familiar powers as to amendment. Adams v. Castle, 64 Minn. 505, 67 N. W. 637; Board of Co. Commrs. of St. Louis County v. American L. & T. Co., 75 Minn. 489, 495, 78 N. W. 113; Gaar, Scott & Co. v. Brundage, 89 Minn. 412, 94 N. W. 1091; Lemon v. De Wolf, 89 Minn. 465, 468, 95 N. W. 316.

What has been said as to the failure of the objection to one question because of its general character disposes of the other assignment of error presented by this record.

Order affirmed.