Combination Steel & Iron Co. v. St. Paul City Ry. Co.

Collins, J. The nature of this action has been stated in the decision upon a former appeal, found reported in 47 Minn. 207, (49 N. W. Rep. 744,) whereby an order refusing 'a new trial to plaintiff was .reversed on the ground that the evidence did not warrant a finding of the trial court that certain promissory notes were received and accepted by plaintiff in absolute payment and discharge o.f the original indebtedness. The second trial resulted in plaintiff’s favor, and this ¡appeal is from an order denying a motion for a third made by defendant railway company. 1. It was alleged in the complaint, among other things, that the contract price for the material furnished by plaintiff for use in the •construction and building of a portion of defendant’s line of road was due on a day named, and that the same had not, nor had any part ■thereof, been paid. By the answer an issue was tendered on this [207] matter of payment, and appellant’s counsel, under one of Ms assignments of error, argues that there was no finding upon this question. The court below found, generally, that all of the allegations of the complaint were true, with an exception to be spoken of later. This was sufficient. Moody v. Tschabold, ante, p. 51, (53 N. W. Rep. 1023.) And, had it not been, application should have been made to the trial court for the specific finding on the issue of payment, which counsel now insists was not only warranted, but absolutely required, by the proofs. Cummings v. Rogers, 36 Minn. 317, (30 N. W. Rep. 892,) and cases cited; Reynolds v. Reynolds, 44 Minn. 132, (46 N. W. Rep. 236.) 2. Referring to the contention of counsel just mentioned, in respect to the testimony on the issue of payment, that the trial court could not properly find otherwise than that the notes were taken in absolute payment of the original indebtedness, it must be said that, while the testimony on this point in defendant’s behalf was increased in quantity, we do not think its probative effect to have been materially different from, or greater than, that produced upon the former trial, and which was held to be insufficient to support a finding that the debt was paid by acceptance of the notes. If this be our conclusion from a careful examination and comparison of this record with that presented on the first appeal, it cannot be expected that we should hold the trial court in error on its finding as to payment. In addition to this, it may be stated that other and further testimony on this point was introduced by plaintiff, including proof (Jagger Iron Co. v. Walker, 76 N. Y. 521) of the law of the state in which the notes were executed and delivered as to the effect of taking a debtor’s note, and as to the effect of indorsing the same to a third party. The finding that plaintiff’s claim had not been paid was sustained by the evidence. 3. The exception in the findings mentioned in the first subdivision hereof was that out of the total number of rails furnished by plaintiff for use in the building and construction of appellant’s road, a part, not less than 50 nor more than 100 — the exact number not being ascertainable — were not used for that purpose by the con [208] struction company. On this point the findings are characterized as imperfect and uncertain, to the extent that no proper judgment in plaintiff's favor can be based thereon; the specific complaint being that the value of these unused rails was not found, nor were they identified. We may not fully comprehend the force of this assignment of error, but it is not material that a portion of the rails furnished for the purpose of building and constructing appellant’s line of railway were not actually used upon the same. Burns v. Sewell, 48 Minn. 425, (51 N. W. Rep. 224.) 4. It is claimed that the evidence was insufficient to support the finding that the rails, or any thereof, mentioned in the complaint and lien statement, were ever shipped or delivered by plaintiff, or the further finding that they were furnished by plaintiff for the purpose of building and constructing the line of road on which a lien is claimed, or on the credit of the same. We do not consider it of importance that we should detail and discuss the testimony on which both of these findings must have been based. We are of opinion that the conclusions of the trial court on the issues of fact thereby disposed of were justified by the evidence before it. Order affirmed. (Opinion published 53 N. W. Rep. 1144.)