Steward v. Nutrena Feed Mills, Inc.

The question on reargument was whether defendant had shifted its position on appeal. The law is that one cannot try a case upon one theory and then shift his position in this court. 1 Dunnell, Minn. Dig. (2 ed. Supp.) § 401.

Usually a plaintiff blazes the way in the trial of the case. The defendant attempts to meet what comes. But the defendant may, however, commit himself to a definite theory, from which he cannot shift upon appeal.

Plaintiff brought the action and tried the case upon the theory that he had an oral contract, confirmed by letter, for a definite period of time, viz. one year.…