Webb v. Fisher , 57 Minn. 441 ( 1894 )

Collins, J.

Under the pleadings in this action, it was clearly competent for plaintiff to show that defendant’s men, under tbe direction of bis farm foreman, cut grass for defendant belonging to the plaintiff, made bay thereof and stacked it upon tbe meadow under an arrangement that, when stacked, plaintiff and defendant should each own half; and tbe value of tbe standing grass was immaterial, for that question was not within tbe issues. This disposes of tbe first three assignments of error.

Tbe fourth and fifth assignments relate to tbe refusal of tbe court to charge as requested by defendant’s counsel. Their requests embraced three propositions, tbe last having little or no connection with tbe first and second. All were refused, and but one general exception taken to tbe refusal. Without doubt, tbe third proposition was properly rejected, and tbe counsel does not nowr claim to tlie contrary. So that the general exception is of no avail. Even if this were not the fact, the first proposition, substantially, that the plaintiff could not recover if the jury should find that there was no agreement for cutting the grass on shares, and none cut for plaintiff, was unsound. As to this the court properly charged that if defendant’s men were trespassers when cutting, stacking, and carrying the hay away, the plaintiff had a right to waive the trespass, and sue as for hay sold and delivered; and the matters found in the second proposition were fully covered in the general charge.

What has been said above in reference to the charge as to plaintiff’s right to waive the trespass disposes of the sixth assignment of error. It has no merit.

Order affirmed.

Buck, J., absent, sick, took no part.

(Opinion published 59 N. W. 537.)