Peterson v. Ruhnke

Vanderburgh, J.1 This action is brought to reform a written lease, and also to recover rent due. The case was tried by the court. Upon the evidence the facts were found in plaintiff’s favor, and judgment was ordered accordingly. The defendant asks for a new trial on the grounds (1) that the complaint does not state a cause of action ; (2) that the reply raises no issue, and (3) that the findings of fact are not sustained by the evidence. Upon the facts alleged and found we see no reason why the plaintiff was not entitled to the relief sought. It is true the plaintiff joins with the equitable cause of action a legal one for the recovery of rent, and as to this last cause of action the defendant was entitled to a trial by jury; but he did not ask a trial by jury, but submitted the case to the court without objection. It is now too late to raise any objection to the complaint or mode of trial. Lace v. Fixen, 39 Minn. 46, (38 N. W. Rep. 762;) Greenleaf v. Egan, 30 Minn. 316, (15 N. W. Rep. 254.) No objection was made to the reply till the ease came on for trial. The objection is that it is evasive, and not sufficiently specific. Where no attempt is made to correct pleadings by motion or otherwise before the trial, every reasonable intendment will be made-in their support. The purpose of the pleader to put in issue the new matter set up in the answer is evident, and it is clear that the defendant could not. be misled. Assuming that the pleading was objectionable, the remedy was by special motion to correct it, and not by disregarding it, or by the exclusion of evidence at the trial. Greenfield v. Mass. Mut. Life Ins. Co., 47 N. Y. 430; Burley v. German-American Bank, 111 U. S. 216, (4 Sup. Ct. Rep. 341;) Potter v. Frail, 67 How. Pr. 445; Welch v. Bradley, 45 Minn. 540, (48 N. W. [117] Rep. 440.) There was evidence sufficient to support the findings. The court was justified in finding that there had been no surrender of the lease. Dayton v. Craik, 26 Minn. 133, (1 N. W. Rep. 813.) Order affirmed. Footnotes [1] Mitchell, J., took no part in this case.