allow to the plaintiff the value of the house erected by him. The verdict embraced such an allowance. We discover no exception to the charge of the court, but the principal question here presented by the appellant fairly arises upon an objection which was raised to the evidence. That question is, whether if one knowing that he has no title to land, but fraudulently inducing another to believe that he has title, contracts to convey to the latter, who is induced by the fraud to enter into the contract, the damages recoverable by the purchaser are limited to the purchase price paid, with interest. We consider it to be well established that in such cases, and generally where one contracts to convey real estate, knowing that he has no title and cannot perform his contract, the recovery is not limited by the technical rule of damages generally applicable in actions upon the covenants in a deed of conveyance, but that it is measured by the broader rule of compensation generally applied in cases of breach of contract and of fraud. Bush v. Cole, 28 N. Y. 261; Pumpelly v. Phelps, 40 N. Y. 59; Burr v. Todd, 41 Pa. St. 206; Hammond v. Hannin, 21 Mich. 374; Dustin v. Newcomer, 8 Ohio, 49; Drake v. Baker, 34 N. J. Law, 358; Martin v. Wright, 21 Ga. 504; Kirkpatrick v. Downing, 58 Mo. 32; Lewis v. Lee, 15 Ind. 499; Morgan v. Stearns, 40 Cal. 434; Tracy v. Gunn, 29 Kan. 508; Sweem v. Steele, 5 Iowa, 352; Gerault v. Anderson, 2 Bibb, 543; Engel v. Fitch, L. R. 3 Q. B. 314; Hopkins v. Grazebrook, 6 Barn. & C. 31; Plumer v. Simonton, 16 U. C. Q. B. 220. Evidence of the value of the building erected by the plaintiff was therefore admissible; especially was this so in view of the fact that the evidence tended to show that the expressed purpose of the plaintiff, when he made the contract, was to construct a house upon the land. The evidence justified the recovery, as modified by the order of the court. The order refusing a new trial is affirmed.

MCDONALD et al. v. RYAN et al.

(Supreme Court of Minnesota. November 8, 1888.)

MECHANICS' LIEN-ENFORCEMENT-EVIDENCE-SUFFICIENCY.

Evidence held insufficient to support plaintiff's claim for a lien, or that the account and affidavit were seasonably filed.

(Syllabus by the Court.)

Appeal from district court, Hennepin county; YOUNG, Judge.

Action by McDonald and others against Ryan and others, to enforce a mechanics' lien. From a judgment in favor of plaintiffs, defendants appeal. A. H. Nunn and W. E. Hewitt, for appellants. J. W. Cochran, for respondents.

PER CURIAM. The record does not justify the numerous assignments of error made by appellants, but some of them appear to be well founded. We cannot escape the conclusion that the evidence of the plaintiffs, as returned, fails to warrant the judgment in their favor. It was necessary to show that the lien claim was filed in time, so that under the issues it was material to prove the date when the last item in the account was furnished. The affidavit for lien, with the account, is alleged to have been filed on the 19th of October, and it is recited therein that the materials were furnished on the 5th and the work and labor performed on the 20th of April. There is evidence tending to show that window-frames were furnished to the contractor in April and used in building a house for defendant Ryan, who also owned the land on which it was built; that some of them were returned, and additional work done thereon, for which the charge was made which constitutes the last item; but we look in vain for any evidence establishing the date when this liability was incurred. The book-keeper, who evidently testified from a copy of the account, merely states, generally, that "everything was delivered between

the 5th and 20th of April," and that the account was originally $50, and that the alterations and extras brought it up to $64.63. The plaintiff Delamater does not recollect the dates, and the account-books were not put in evidence. The agreed price or value of the goods is not shown, and the evidence is scant in respect to several other material matters involved in the issues. Very likely the plaintiffs had a good cause of action, and, if so, it is to be regretted that they failed to produce evidence to sustain it. We are obliged to order a new trial. Judgment reversed.

C. AULTMAN & Co. et al. v. BROWN.

(Supreme Court of Minnesota. November 7, 1888.)

EVIDENCE-PAROL.

A written contract (an acceptance) cannot be varied by proof of a contemporary parol agreement importing conditions not expressed in the writing.1 (Syllabus by the Court.)

Appeal from district court, Polk county; MILLS, Judge.

John N. Ives and P. C. Schmidt, for M. R. Brown, appellant. Pierce & Cromb and W. E. Ackers, for C. Aultman & Co., appellees.

DICKINSON, J. The evidence of the parol agreement, contemporaneous with the written acceptance, was properly excluded. The agreement thus sought to be shown was of a nature to vary the definite legal obligation clearly expressed in the written contract, and, if allowed to affect the case, it would have made the defendant's liability to be different from that expressed in the written instrument. It would have made that liability to depend upon conditions not there expressed or referred to. Order affirmed.

IVERSON et al. v. DUBAY.

(Supreme Court of Minnesota. November 7, 1888.)

1. SALE-ACTION FOR PRICE-PLEADING AND PROOF-VARIANCE.

In an action for the recovery of the price of goods sold, proof that the purchase price was less than that alleged in the complaint held not to constitute a material

variance.

2. PLEADING-AMENDMENT-SET-OFF AND COUNTER-CLAIM.

Refusal of the court at the trial to allow an answer setting up a counter-claim to be amended so as to make it applicable to a wholly different subject, sustained as a proper exercise of discretion.

(Syllabus by the Court.)

Appeal from municipal court of Minneapolis; MAHONEY, Judge.

Armstrong Taylor, for Dubay, appellant. Byron Sutherland, for Iverson & Son, appellees.

DICKINSON, J. This action was for the recovery of a part of the price of a wagon alleged in the complaint to have been sold to the defendant on or about August 8, 1887, for the price of $140. The plaintiffs' evidence showed the agreement to have been made on the 8th day of August, and that the wagon was delivered later in the month, but that the price was $145. This was not a material variance, affecting the plaintiffs' right of recovery. The plaintiffs had previously sold another wagon to the defendant, in the month of June. The answer having set up a counter-claim growing out of a breach of warranty

1 Proof of a contemporaneous parol agreement is inadmissible to alter or vary a contract in writing. Dyar v. Walton, (Ga.) 7 S. E. Rep. 220, and note. See, also, as to how far parol evidence is admissible to explain written instruments and contracts, Reynolds v. Robinson, (N. Y.) 18 N. E. Rep. 127, and note; Harrison v. Morrison, (Minn.) unte, 66, and note.

respecting the wagon referred to in the complaint, the defendant, upon the trial, asked leave to amend so as to make the counter-claim applicable to the wagon sold in June. The plaintiff being unprepared to meet such a claim, the application was denied. This was a matter of discretion, and there was no impropriety in the action of the court. Under the answer, without amendment, the claim of a breach of warranty respecting the wagon sold in June was not a proper subject of proof. Order affirmed.

FLAHERTY v. NORTHERN PAC. RY. Co. et al.

(Supreme Court of Minnesota. November 7, 1888.)

1. CARRIERS-OF PASSENGERS-IMPUTED NEGLIGENCE.

In an action against two railroad companies for the killing of a passenger in a train of one of the defendants, in a collision with a train of the other, a complaint, alleging negligence in the operation of both trains, held sufficient. The negligence of the carrier, in whose train the deceased was a passenger, is not imputable to him.' 2. SAME CONCURRENT NEGLIGENCE-ACTIONS-PARTIES.

Such an action may be maintained jointly against both the parties whose concurrent negligence directly produced the one event complained of.1

3. PLEADING-DEMURRER-OVERRULING ON CONDITION.

The court, in overruling a demurrer to a complaint, allowed the defendant to answer within 10 days, upon the condition of going to trial at a term of court then being held. Held, that the imposing of this condition was not an abuse of discretion. (Syllabus by the Court.)

Appeal from district court, Ramsey county; BRILL, Judge.

J. D. Springer and F. D. Larrabee, for Minneapolis & St. Louis Railway Company, appellant. J. D. O'Brien and I. V. D. Heard, for Margaret Flaherty, appellee.

DICKINSON, J. Appeal by the Minneapolis & St. Louis Railway Company from an order overruling its demurrer to the complaint. The complaint is sufficient to charge the appellant company with negligence, and to show a right of recovery against it. It is alleged that, while the plaintiff's intestate was a passenger upon a train of the Northern Pacific Company, he was killed in a collision of that train with a train of the Minneapolis & St. Louis Company, running in the opposite direction, and that the collision was caused by the negligent inanner of the operation of both trains. It is particularly alleged that both trains were running at a dangerous and unlawful rate of speed, and that the switches were not properly arranged for the running of these trains. The position of the appellant is untenable, that, in order to show its responsibility, it must appear that the train of the other defendant was rightfully upon this track. If the collision was caused directly by the concurrent negligence of both companies, both are responsible. The negligence of the common carrier upon whose train the deceased was a passenger was not imputable to him. Follman v. City of Mankato, 35 Minn. 522, 29 N. W. Rep. 317. It may be here stated that Thorogood v. Bryan, 8 C. B. 115, and Armstrong v. Railway Co., L. R. 10 Exch. 47, referred to in Follman v. City of Mankato, as opposed to our decision in that case, have been recently expressly overruled in the English court of appeal. The Bernina, 12 Prob. Div. 58. The collision and injury having been caused directly by the concurrent wrongful acts or omissions of both defendants, all tending to

1One injured by a collision between two trains, on one of which he was a passenger, can recover against the company running the other train, its engineer having caused the disaster by his negligence, although the engineer of the former train may also have been guilty of negligence. Parshall v. Railway Co., 35 Fed. Rep. 649.

As to a carrier's liability for death of a passenger resulting from a collision with the train of another company, see Transit Co. v. Shacklet, (Ill.) 10 N. E. Rep. 896; Kellow v. Railway Co., (Iowa,) 23 N. W. Rep. 740; Pratt v. Railway Co. (Minn.) 38 N. W. Rep. 356; Railway Co. v. Kuhn, (Ky.) 6 S. W. Rep. 441.

produce the one resulting event complained of, the action against them jointly is maintainable, although there was no concert of action or common purpose between them. Colegrove v. Railroad Co., 20 N. Y. 492; Cuddy v. Horn, 46 Mich. 596, 10 N. W. Rep. 32; Tompkins v. Railroad Co., 66 Cal. 163, 4 Pac. Rep. 1165. See language of LOPES, J., in The Bernina, 12 Prob. Div. 58, 99. See, also, Stone v. Dickinson, 5 Allen, 29, 31; Chipman v. Palmer, 77 N. Y. 57; Slater v. Mersereau, 64 N. Y. 138; Cooper v. Transportation Co., 75 N. Y. 116.

In the order overruling the demurrer the court allowed this appellant to answer within 10 days, upon the condition that the cause should proceed to trial at a term of court then being held. The imposing of this condition is now assigned as an abuse of discretion. The appellant does not appear to have reason to complain. Having admitted the allegations of the complaint by the demurrer, it had no right, as a matter of course, to withdraw that admission, and join issue upon those allegations; nor does it appear that the defendant ever sought to be allowed to do so, or claimed before the court that it had any defense to the facts alleged. The appellant cannot complain of the condition attending the granting of leave to answer, when it does not appear that it was entitled, as a matter of right, to leave to answer at all. But, apart from this consideration, in allowing a party to withdraw a demurrer, and to plead to the facts alleged against him, a court may properly, in the exercise of its discretion, impose such reasonable conditions as may prevent unnecessary delay in the trial and determination of the cause; and it must be made to appear that a party has been prejudiced before the action of the court in such matters, not appearing to be unreasonable or prejudiced upon its face, will be held to have been an abuse of discretion. The order in question seems to us to have been reasonable, at least in the absence of any showing of circumstances preventing the defendant from complying with the condition. Order affirmed.

DOLE v. WILSON et al.

(Supreme Court of Minnesota. November 7, 1888.)

1. JUDGMENT-EQUITABLE RELIEF-LACHES.

A judgment debtor, who has neglected to exercise reasonable diligence to enforce his judgment until it has expired by statutory limitation, is not entitled to equitable relief to enforce the satisfaction of the extinct judgment.

2. SAME

LACHES-NEGLIGENCE-WHAT CONSTITUTES.

A judgment creditor who accepted the bare statements of his debtor as to his property, and as to the good faith of the parties in respect to a record incumbrance, without resorting to the usual proceedings provided for the discovery of fraud, and to reach concealed property, held to have been negligent.1

3. SAME-LIMITATION OF ACTIONS-EXCEPTIONS-TRUSTS-RESULTING TRUSTS. The rule excepting cases of trust from the operation of statutes of limitation is not applicable to a mere resulting trust.

4. SAME REVIVAL-LACHES.

A money judgment held recoverable upon a former judgment, although no case for equitable relief is shown.

(Syllabus by the Court.)

Appeal from district court, Benton county; BAXTER, Judge.

John B. & W. H. Sanborn and Geo. W. Sweet, for appellant. Taylor & Calhoun, for respondents.

DICKINSON, J. This is an action to enforce a resulting trust in favor of the plaintiff, a creditor of the defendant Joseph P. Wilson, in respect to lands

As to what is laches sufficient to preclude equitable relief, and what will rebut the imputation thereof, see Hoffert v. Miller, (Ky.) 6 S. W. Rep. 447, and note; Culver v. Pierson, (N. J.) 15 Atl. Rep. 269, and note; Bowman v. Patrick, 36 Fed. Rep. 138; Johnston v. Jones, (Ala.) 4 South. Rép. 748, and note.

v.40N.w.no.2-11

conveyed, upon purchase, to the wife of the latter; the consideration having been, as is alleged, paid by the husband. The case presents the question of the sufficiency of the facts alleged in the complaint to justify the relief sought. These facts are, in brief, as follows: The lands in question were purchased and conveyed to Wilson's wife between October, 1881, and November, 1883; the plaintiff's debtor, Wilson, paying the purchase price, and having the title conveyed to his wife for the purpose of defrauding his creditors. In October, 1876, the plaintiff had recovered a judgment against Wilson in the district court for more than $10,000. Wilson appealed from that judgment to this court, where, in October, 1877, his appeal was dismissed, and judgment for $31 costs was rendered against him. Executions were issued upon these judgments, and returned unsatisfied, no property being found; although, as is alleged, diligent search was made by the plaintiff's agents and attorneys. The plaintiff is a non-resident of this state. At various times after the rendition of these judgments, and prior to June, 1887, the plaintiff's attorney had conversations with the judgment debtor concerning the payment of the same, in all of which the latter stated that he was insolvent, and had no property of any kind; and that, if examined upon proceedings supplementary to execution, he would so swear; and that a certain judgment for more than $26,000, which had been entered against him in favor of one Corbett, prior to those of the plaintiff, was for a bona fide indebtedness, and that he was unable to pay the same. The plaintiff, to whom these representations were communicated by his attorney, believed them to be true; both he and his attorneys being deceived thereby, and thus induced to refrain from taking proceedings supplementary to execution, and from making any effort to enforce the collection of his judgments. They had no information of the falsity of these representations, or that the judgment debtor had paid the consideration for the conveyance of the lands in question to his wife until June, 1887. These representations of the debtor, as is alleged, were false,―he in fact at all times holding and controlling a large amount of property; and the Corbett judgment was not founded upon a real indebtedness, but was collusively entered, for the purpose of defrauding the plaintiff. This action was commenced in October, 1887, more than 10 years after the recovery of the plaintiff's judgment in the district court, but a little less than 10 years after his judgment for costs in this court. We will first consider the case with regard to the former judgment. The plaintiff is seeking, through the equitable jurisdiction of the court, to have this land appropriated to the satisfaction of his judgment after the judgment itself has expired by lapse of time. Equity will regard the statutory limitation upon the life and enforcibility of the judgment, and will not interfere to enforce its satisfaction by means of its peculiar remedies; thus avoiding the effect of the statutory limitation, if by the plaintiff's own neglect the judgment has been suffered to remain unsatisfied until it has ceased to exist as a legal obligation. Wood v. Carpenter, 101 U. S. 135; Newell v. Dart, 28 Minn. 249, 9 N. W. Rep. 732. The cases in which securities, as mortgages, created by the contract of the parties, have been made available after a right of action to recover the debt had been barred, do not support the plaintiff's claim in this action. The same reasons are opposed to the right to enforce the satisfaction of an extinct judgment by means of proceedings on the equity side of the court as are applicable to a legal execution. Of course, there may be cases where equity would afford relief upon the ground of fraud. The plaintiff's conduct, as set forth in the complaint, did not constitute such reasonable diligence for the discovery of property, and the enforcement of the judgment, as should entitle him to avoid the effect of the statute limiting the life and enforcibility of the legal obligation. Morrill v. Madden, 35 Minn. 493, 29 N. W. Rep. 193, and 37 Minn. 282, 34 N. W. Rep. 25; Wood v. Carpenter, supra. The plaintiff must be regarded as having acted in the light of the knowledge of the legal limitation of his right, and that the debtor stood in an attitude of