D. M. Osborne & Co. v. Williams

Gilfillan, C. J. The matter alleged in the reply was no bar to the counterclaim set forth in the answer. This action is to recover upon the promissory notes made by defendant to plaintiff. The counterclaim was based on an alleged warranty by plaintiff to defendant of a harvesting machine, which formed the consideration for the notes, and which warranty failed. The reply sets up that a chattel mortgage was given by defendant to plaintiff to secure the said notes; that this plaintiff brought an action against defendant to recover possession of the property covered by the mortgage; and in the answer in that action defendant alleged the same matters as in this action as the consideration for the notes and mortgage, and the failure of the warranty; claiming that by reason thereof there was a total failure of consideration for said chattel mortgage, and that in that action the defendant had judgment. The counterclaim was not, and, under pleadings in the former action, could not be, litigated. That action was in replevin. The plaintiff’s claim to the possession of the property was based on a chattel mortgage. The matters showing a want of consideration were pleaded for the purpose of showing that the mortgage was void, and that therefore the plaintiff was not entitled to the possession of the property, merely as a defence, and not for the purpose of recovering affirmative relief by reason of the breach of warranty. So that, conceding, what is not entirely clear, that the counterclaim might have been set up and litigated in that action, it is enough to say it was not. From the statement of the case it appears that the cause was submitted on the record in the former action, including a statement of the case containing all the evidence. That that evidence was sufficient to justify a finding that the machine for which the notes were given in part-payment was' of no value, was decided when the former action was here. The point made that the court below erred in permitting the verdict and decision of the court on a motion for a new trial in the former action to have any influence on the finding as to the value of the machine, on the ground that, according to the stipulation between the parties, only the evidence on the trial of that action was submitted to the court for its consideration, is not sustained by the record. The [355] statement of the case shows that the entire record in that action was submitted to the court, and it does not show that there was any agreement excluding any portion of the record from the consideration of the court. That there was any stipulation is not shown by the statement of the case. That there was one is stated in the findings of the court. But what took place at the trial must be made to appear by a bill of exceptions or statement of the case, and not by the findings of fact. Bazille v. Ullman, 2 Minn. 110, (134;) Stone v. Johnson, 30 Minn. 16, (13 N. W. Rep. 920;) Coolbaugh v. Roemer, 32 Minn. 445, (21 N. W. Rep. 472.) The point cannot, therefore, be considered. Order affirmed.