an acre for all the said tracts which they can give good and sufficient title to as aforesaid, and the parties of the second part aforesaid agree to pay the sum of three hundred dollars ($300) an acre in cash on the delivery of good and sufficient deed or deeds of such portions. of said tracts as good and sufficient deed or deeds can be given of as aforesaid, as evidenced by abstracts of title of said tracts, to be furnished by the parties of the first part to the parties of the second part.

"Witness our hands and seal this 7th day of October, 1886.

The complaint also contains allegations to the effect that the plaintiff has always been and still is ready and willing to fulfil said agreement, and that the defendants and each of them have wholly failed and refused to perform each and all the terms of the agreement.

Defendant

The defendants demurred separately to the complaint. Lyman C. Dayton appeals from an order by Wilkin, J., overruling his demurrer to the complaint, and defendant May I. Dayton appeals from an order by Simons, J., overruling her demurrer to the complaint. The grounds of demurrer assigned by both defendants were (1) that the court has no jurisdiction, (2) that the plaintiff has not legal capacity to sue, (3) that there is a defect of parties plaintiff, and (4) that the complaint does not state facts sufficient to constitute a cause of action.

Chas. N. Bell, for appellants.

Young & Lightner, for respondent.

DICKINSON, J. The defendants separately demurred to the complaint. Both demurrers will be considered in this opinion. The demurrers admit the corporate existence of the plaintiff, which is sufficiently alleged in the complaint. The complaint also shows the making of the contract sued on between the president of the plaintiff, contracting in its behalf, and the defendants, whereby the latter contracted to convey the lands in question to the plaintiff. The demurrer admits the making of this contract. Upon these facts the plaintiff

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might rest, without affirmatively showing that by its charter it was empowered to make such a contract, or to purchase and hold real property. It need not specifically allege, as it need not prove, that the contract made with the defendants, and upon its face valid, was not ultra vires. Baker v. N. W. Guaranty Loan Co., 36 Minn. 185, (30 N. W. Rep. 464;) Bliss, Code Pl. 257.

The allegation that the defendants duly made and entered into the written contract "with the plaintiff" is sufficient, at least upon demurrer, as an averment that Hager, who in terms executed the contract in its behalf, was authorized to do so.

Although the seal be rejected as unauthorized, the instrument would be valid as a simple contract. Dickerman v. Ashton, 21 Minn. 538; Thomas v. Joslin, 30 Minn. 388, (15 N. W. Rep. 675.)

The summons and complaint were against both of these defendants; and the fact that one of them, May I. Dayton, had not been served, so as to have been brought within the jurisdiction of the court, at the time when Lyman C. Dayton interposed his separate demurrer, afforded no ground for his demurrer to the complaint.

The orders overruling the demurrers of both defendants are affirmed.

GEORGE PAYETTE vs. JAMES W. DAY.

October 28, 1887.

Trial-Evidence-Issue not made by Pleadings.-Evidence pertinent to the issues made by the pleadings cannot be considered upon an issue not made therein, although it would have been pertinent to such issue if it had been made. The fact that such evidence was received without objection implies no consent by the opposite party to try any such issue, especially when inconsistent with the admissions of the pleadings themselves.

Action for slander. Appeal by defendant from a judgment of the district court for Hennepin county, where the action was tried before Rea, J., and a jury, and plaintiff had a verdict of $750.

D. A. Secombe, for appellant.

Albert F. Foster, for respondent.

MITCHELL, J. Action for slander, for maliciously uttering of and concerning plaintiff the false charge that he stole defendant's adze. The answer does not controvert, either by denial or justification, that the words were uttered, and that they were false, but, in mitigation, denies that they were uttered maliciously, and alleges that the defendant had, at the time they were alleged to have been uttered, probable cause and good reason to believe, and did believe, that plaintiff had stolen his adze. The bill of exceptions states that, upon the trial, evidence was introduced tending to prove that, at the time of speaking the alleged slanderous words, the defendant had probable cause and good reason to believe, and did believe, that plaintiff stole his adze; "which said evidence also tended to prove that the plaintiff did steal said adze." Thereupon defendant requested the court to charge the jury that if, from said evidence, they believe that plaintiff stole defendant's adze, they should find for defendant. The court refused so to charge, upon the ground that the truth of the slanderous words was not in issue under the pleadings. In this the learned court was clearly right.

The allegation of the complaint that the words were false, not having been controverted by the answer, stood, for the purposes of the trial, as admitted to be true. So far as the bill of exceptions shows, the trial was conducted throughout on this theory. Presumably (and such is the fair construction of the language of the bill of exceptions) the evidence referred to was introduced, not for the purpose of proving that the words were in fact true, but merely that the defendant had good reason to believe, and did believe, them to be true. This was entirely consistent with the admission that they were in fact false. The fact that the evidence introduced for this purpose (which was pertinent to the issues made by the pleadings) might also tend to prove that the words were true in fact, has no tendency to show that plaintiff consented to try an issue as to the falsity of the words spoken, which was not only outside of the issues made, but stood admitted by the pleadings themselves. City of Winona v. Minn. Ry. Construction Co., 27 Minn. 415, 427, (6 N. W. Rep. 795, and 8 N. W. Rep. 148;) O'Neil v. Chicago, Mil. & St. Paul Ry. Co., 33 Minn. 489, (24

N. W. Rep. 192;) Livingston v. Ives, 35 Minn. 55, (27 N. W. Rep. 74.) This is not a case of variance between the allegations and the proof, and which the court might disregard. It was simply a case where evidence pertinent to the issues made by the pleadings tended also to prove a fact, not only outside of those issues, but inconsistent with the solemn admissions of the pleadings themselves. The defendant had no right to have the jury consider the evidence for any such purpose, and the court was right in refusing his request. Judgment affirmed.

KATE M. PAGE US. EMMA E. MITCHELL.

October 28, 1887.

Pleading.-Matters in abatement may be united with other defences in the

same answer.

Same-Defence of Prior Action Pending-Dismissal-Reply.-Upon a plea or answer showing the pendency of a former suit between the same parties for the same cause, it is competent for the plaintiff to dismiss the first suit, and to set up such dismissal in his reply, which will constitute a good answer to such plea.

Appeal by defendant from a judgment of the municipal court of Minneapolis.

Miller, Young & Miller, for appellant.

John R. Van Derlip, for respondent.

VANDERBURGH, J. The defendant's answer sets up the pendency of a former suit between the same parties for the same cause, and also a separate defence upon the merits. The two defences were properly united in the same answer. The plaintiff's reply admits the former action, but alleges dismissal, and puts in issue the further allegations in the answer. At the trial the defence upon the merits failed; and as to the plea in abatement, it is found by the court that at the time of the service of the summons in this action a notice of dismissal of the former suit was also served on the defendant,

and was immediately mailed to the clerk, whose duty it thereupon became to make the proper entry; but it was not, however, filed or entered until several weeks afterwards. The trial court held that it was enough that the former suit was dismissed before the trial, and gave judgment for the plaintiff on the merits.

We think the case properly disposed of. When the trial was reached there was but one suit pending, and there was no good reason why it should not then be tried on the merits. If the former suit had not been discontinued, the defendant would have been entitled to judgment for her costs in this suit, and the plaintiff would be at liberty to proceed to trial in the former action; but, as the case stood at the trial, defendant was entitled to judgment of dismissal and for her costs in the former suit, and plaintiff was entitled to proceed to trial and judgment in this action. There certainly could be no propriety or justice in driving her to a new action. Averill v. Patterson, 10 N. Y. 500-502, and cases cited; Chamberlain v. Eckert, 2 Biss. 124; O'Beirne v. Lloyd, 1 Sweeny, 19; Blandy v. Raguet, 14 Minn. 368, (491, 497.) The better rule in practice, we think, is this: Upon a plea or answer showing the pendency of a former suit, it is competent for the plaintiff to dismiss the first suit, and a reply setting up such dismissal is a good answer to the plea. The issue will therefore be embraced within the pleadings, and the question thereon will be whether the reply is true. Beals v. Cameron, 3 How. Pr. 414, and

cases.

No question is made here upon the reception of the evidence under the reply, or in respect to the sufficiency of the latter.

Judgment affirmed.

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