Schumann v. Mark

Gtleillan, C. J. If the defendant deemed himself aggrieved by the action of the court below in striking from his proposed case matter relative to his proposed amended answer, his remedy was not a motion for a new trial, but that indicated in State v. Macdonald, 30 Minn. 98, (14 N. W. Rep. 459,) to wit, to move for a resettlement of the case, and, in case of refusal, to apply for a mandamus. As the case comes to us, there is nothing in it showing what amendment to the answer was proposed, so we have nothing on which to review the refusal to allow it. As to the finding of fact that there had been no waiver of defendant’s default, it is not only in accordance with the evidence, but there is no evidence whatever to the contrary. The contract between Bendeke and defendant was a contract to sell and convey on the per 380 formance of certain conditions precedent wbieb should be strictly performed on time; and that, on failure to perform, Bendeke should be released from the obligation to convey, was clearly and explicitly expressed in the contract. Defendant did not perform, and did not show or attempt any excuse for non-performance. Upon such a ease, a court, whether at law or equity, would not hesitate to declare the contract at an end, as the parties stipulated it should be, and a court of equity might, in its discretion, cancel the contract. Dahl v. Pross, 6 Minn. 38, (89;) Yoss v. De Freudenrich, Id. 45, (95.) Order affirmed.