D. M. Osborne & Co. v. Waller
D. M. OSBORNE & COMPANY v. G. V. WALLER and Others
Headnotes
Summary
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
Opinion of the Court
Text extracted by OCR from a scanned original; check the original for exact wording.
START, O. J.
Action to recover from the defendants, as guarantors, the amount of two promissory notes. The defendant Larson answered, setting up two defenses: (1) That, without his knowledge or consent, the plaintiff for a valuable consideration extended the time for the payment of the notes; (2) payment of the notes before the commencement of the action.. On the trial the defendant was required by the court, on motion of the plaintiff, to elect which defense he would stand upon, on the ground that the two defenses were inconsistent. He elected to rely upon his first defense, and excepted to the order of the court compelling him so to elect. Verdict for the plaintiff, and the defendant appealed from an order denying his motion for a new trial. 0
The first assignment of error is that the trial court erred in requiring the defendant to elect which defense he would rely upon. A sufficient exception was taken to the ruling. The defenses were not inconsistent, for both might be true. The time of payment may have been extended, and the notes paid after they became due. Roblee v. Secrest, 28 Minn. 43 , 8 N. W. 904 ; Gammon v. Ganfield, *53 42 Minn. 368 , 44 N. W. 125 . It was therefore error to compel the defendant to elect, for which a new trial must be granted.
Order reversed, and a new trial granted.
How later courts describe this case
No later court has written an explanatory parenthetical about this case yet.
Cited by 2 cases
View all citing references →Relies on it most ⓘ
Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.