Rollins v. St. Paul Lumber Co.

Berry, J. The contract to drive the logs being entire, [8] the complaint, which alleges that plaintiff agreed to drive “ certain logs,” was defective in not alleging in some way that plaintiff had driven all of said logs, instead of merely alleging that he had driven certain named quantities, without stating whether such quantities were all the logs contracted to be driven, or not. But as no objection was taken to the complaint until after answer, and as the answer expressly admits that the quantities mentioned in the complaint embraced all the logs agreed to be driven, this defect of the complaint must be disregarded. 1 Ch. Pl. 672 ; Bennett v. Phelps, 12 Minn. 326 ; Shartle v. Minneapolis, 17 Minn. 308. The contract received in evidence proved the contract alleged in the complaint. It was only necessary that the complaint should state ‘ ‘ those parts of the contract whereof a breach is complained of, or, in other words, to show so much of the terms beneficial to the plaintiff in a contract, as constitutes the point, for a failure of which he sues; and it is not necessary or proper to set out in the declaration other parts, not qualifying or varying in any respect the material parts above mentioned.” 1 Ch. Pl. 304. That is to say, it is not necessary that a complaint, whether upon a special contract or otherwise, should set out any facts, except such as are material to the cause of action. Upon these principles, the fact that the contract, as proved, contains some provisions which are not material to the plaintiff’s cause of action, and which are not noticed in his complaint, does not present a case of variance. The contract introduced in evidence was a contract by plaintiff to drive certain specified logs for defendant, at $1.20 per thousand feet. The answer denied that the logs were driven according to contract, claiming that they should have been driven in 1872; but admitted that a part of them, 844,441 feet, were driven in 1873, and that the driving thereof was worth $1.20 per thousand feet. “The court charged the jury that the contract introduced in evidence, as aforesaid, is an entirety, * * and the plaintiff, in order [9] to recover anything under it, would have to prove, save as admitted in the answer, that he had entirely performed the contract in this action; but that plaintiff was entitled to a verdict for driving the 844,441 feet of logs driven in 1873, at the rate of $1.20 per thousand feet, and interest, by reason of the express admission in the answer; and that they must find for the plaintiff to that amount, in any event.” The jury brought in a verdict for the plaintiff for the whole amount claimed by him ; that is, for driving all the logs contracted to be driven, and at the contract price, viz: 1,222,-979 feet, at $1.20 per thousand feet. Now, under the instruction of the court, the jury could not properly have found a verdict for the plaintiff, for driving 378,538 feet, being 1,222,979 feet, less 844,441 feet, unless upon the basis that plaintiff had entirely performed his contract; for there is no claim or pretence or admission that, as to the 378,538 feet, the plaintiff was entitled to recover, except under the contract. As the verdict could not, therefore, properly, and in accordance with the instruction of the court, have been arrived at, except upon this basis, it is to be presumed, in its support, that it was in fact arrived at in this way. If we are correct in this opinion, it follows that the latter branch of the instructions, relating to the effect of defendant’s admission in the answer, whether right or wrong, was not practically injurious to the defendant, since, having found an entire performance under the contract, the jury had no occasion to apply it to this case. See Pence v. Gale, 20 Minn. 257. Order denying a new trial affirmed.