Iverson v. Cirkel , 56 Minn. 299 ( 1894 )

Collins, ¿T.

Defendants’ counsel have made an able and exhaustive argument in support of their claim that the contract on which plaintiffs seek to recover was within the statute of frauds, 1878, G. S. ch. 41, § 7, and void, but the question is not before us for determination. Had counsel intended to rely upon the statute as a defense, they should have done one of two things: They should have rested upon the general denial found in the answer, which denial was sufficient to put plaintiffs upon proof of a valid agreement, Fontaine v. Bush, 40 Minn. 141, (41 N. W. 465,) or they should have qualified their further allegations respecting the contract which they alleged was made with plaintiffs. The latter averred in the complaint that the contract between the parties was for the manufacture and shipment to the former of two dump carts at an agreed price of $140. In the answer the making of a contract for two dump carts was admitted and expressly alleged. The real issue tendered by the pleadings was whether these carts were to have two or four wheels. Those made and shipped had but two, while defendants contended that the carts ordered by them, and which plaintiffs agreed to furnish, were to have four wheels each; that is, the forward wheels, to which the body of the cart, resting on the hind wheels, is connected by means of a short reach, were included, and were to be furnished. Because of plaintiffs’ failure to furnish these forward wheels the defendants counterclaimed for damages, and upon the trial were allowed to introduce testimony tending to sustain such counterclaim. Instead of seeking to avoid the contract sued upon as within the statute, the answer must be construed — and the parties so construed it upon the trial — as admitting it. The defendants affirmed its validity, and insisted upon its enforcement to the extent of a recovery for damages said to have resulted to them because plaintiffs had failed to perform. That they might confess the making of the agreement, when answering, and at the same time, through proper allegations, insist upon the benefit of the statute, is not doubted; but this, taking the whole answer together, they did not do. At law, as well as in equity, it is clear that where by the answer the making of the contract is admitted, either expressly or by necessary inference, a defendant desiring to have the benefit of the statute of frauds must claim it in the same pleading. Wood, St. Frauds, § 537; 2 Eeed, St. Frauds, § 529, and cases cited. As we construe the answer, the cases cited by appellants, to the effect that where the making of the contract alleged in the complaint is denied, generally or specifically, in the answer, but the making of an entirely different contract is averred, the plaintiff cannot recover without producing legal evidence of the making of the contract he relies on, are not in point.

The court did not err when permitting witnesses, who were manufacturers of dump carts, to state what constituted such a vehicle in the place where these dump carts were ordered and made. The plaintiffs contended that such a cart consisted of a box set up on a single axle with two wheels, which could be coupled to independent froward wheels when about to be moved, and detached from those wheels for unloading or “dumping” the contents. The defendants insisted, as above stated, that these forward wheels were part of the cart. While the testimony may not have been important, — for a four-wheeled cart would be a singular affair, — it was competent. It did not involve a question of “custom,” as counsel argue.

The refusal of the court to give the defendants’ requests was correct. This action was brought to recover the agreed price for the carts which plaintiffs had made and shipped on contract, and was not an action to recover damages for a breach of the contract. Order affirmed.