majority">Berry, J.*

This is an action for the price of fruit-trees ordered of plaintiff by defendant. One defence was that the trees were never *44delivered as by the terms of the order required. A second defence was that the plaintiff fraudulently obtained the order, by representing that the trees ordered were raised in Mankato, whereas, in fact, they were raised in Lake City, on which account they were less valuable than if they had been raised as represented; that the plaintiff knew that his representations were false; that the defendant relied on their truth, and would not have given the order if they had not been made, etc. Before the justice by whom the case was originally tried, the plaintiff moved that the second defence be stricken out, as frivolous and sham. The motion was denied, plaintiff excepting. Plaintiff then moved that defendant elect on which defence he will rely, upon the ground that the two defences are inconsistent. The motion was granted, defendant excepting, and thereupon defendant elected to rely upon his first defence. Upon defendant’s appeal, upon questions of law alone, from a judgment in favor of the plaintiff, the district court held that the two defences were not inconsistent, and that the second defence was not sham or frivolous, and reversed the judgment accordingly. There was no error in this. The defences were not inconsistent, because both might be true at the same time. The second was not frivolous, because, although the substantial difference between trees raised in Mankato and in Lake City might be inconsiderable, it was a difference in fact for which the defendant had stipulated, and upon which he had, therefore, the right to insist. There is no reason whatever, upon the face of the pleadings, for supposing that the second defence was sham, i. e., false. Conway v. Wharton, 13 Minn. 158.

Judgment affirmed.*

Cornell, J., because of illness, took no part in this case.

Melvest Roblee «s. Abram Moses. May 20, 1881.

Berry, J. This case follows Roblee v. Secrest, in which we have filed an opinion at this term.

Judgment affirmed.

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