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ified, and it is impossible to conceive any purpose the defendant could have had in writing it in so terse and bare terms on the back of the note, except to indicate that he still considered the note a binding obligation, which he expected and intended to pay. He must have had some purpose in writing the acknowledgment, and in writing it on the note; no other than an intent to renew the note is apparent from or suggested by the terms of the acknowledgment, and the circumstances under which it was written. We therefore consider it sufficient under the statute.

The copy record of the Iowa court appointing plaintiff executor of the will of plaintiff's testator is fully authenticated, as required by the act of congress. By the laws of Iowa, the circuit court of each county had exclusive jurisdiction of wills, and of the appointment of executors, etc., and "the clerk in vacation shall have power to appoint executors," etc. The defendant insists that, to make the record of appointment of any avail, it should first be shown that the appointment (in this case, made by the clerk) was made in vacation, and that otherwise it does not appear there was any jurisdiction. But we think that action by the clerk in the matter in term-time, rather than in vacation, would raise a question of regularity for the Iowa courts to settle, and not one of jurisdiction. Jurisdiction was vested in the court, not in the clerk. Whenever he or the judge of the court acted, he exercised the jurisdiction of the court, and not his own, and the court had jurisdiction at all times in term-time or in vacation. In this state the judge of the district court in one district may, in certain circumstances, hold the terms of court in another district; but no one would imagine that, in order to sustain the proceedings at such a term, it would be necessary to prove the circumstance (such as the request of the judge of the district) justifying the judge so to hold a term out of his own district. It would not be a matter of jurisdiction. Being one only of regularity, the presumption would be in its favor.

We see no error in the decision of the court below, except as to the amount of the recovery, which seems too large. We infer that the court allowed interest for the whole time, at 10 per cent. per annum. The true rule is to allow that rate on each note till it became due, and after that 7 per cent. per annum. The cause will be remanded, and the court below will modify its conclusions by estimating the amount to be recovered by that rule.

PUTNAM et al. v. How.

(Supreme Court of Minnesota. November 12, 1888.)

FACTORS AND BROKERS-REAL-ESTATE AGENTS-COMMISSIONS.

Evidence held insufficient to justify a recovery of an agent's commissions for selling real estate.1

(Syllabus by the Court.)

Appeal from district court, Hennepin county; SEARLE, Judge. Action by Putnam Bros. & Co. sions for the sale of real estate. peals.

Peck & Brown, for appellant.

against David L. How, to recover commisJudgment for plaintiffs, and defendant apAlbert F. Foster, for respondents.

GILFILLAN, C. J. This is an action to recover commissions for selling, or procuring a purchaser for, real estate. The defendant employed plaintiffs, who were real-estate agents, doing business at Minneapolis, to sell a farm consisting of 520 acres, belonging to him, the price for it being $6,300. The exclusive right to sell was not given to them, and therefore defendant him

1 As to when a real-estate broker will be considered to be entitled to commissions, see Desmond v. Stebbins, (Mass.) 5 N. E. Rep. 150, and note; Pratt v. Patterson's Ex'rs, (Pa.) 3 Atl. Rep. 858, and note; Hannan v. Moran, (Mich.) 38 N. W. Rep. 909, and note.

self might sell without being liable to them, unless he sold to a purchaser procured by plaintiff. To be entitled to their commission (which appears to have been agreed on at 5 per cent. of the price) it was necessary that plaintiffs should make a sale of the farm, or at least procure and bring to defendant a purchaser ready and willing to buy on the terms offered. As the evidence indicates, they would be entitled to the commission if they procured a purchaser, although the defendant, and not they, closed the transaction by finally agreeing on the sale. There was a sale of the farm made, but it was made by defendant. Plaintiffs, however, claim that it was made to a purchaser procured by them; that their exertions brought about the sale. On that which is really the only point in the case, we think the evidence is not sufficient to justify the finding in favor of the plaintiffs. The facts, as shown by the evidence on the part of the plaintiffs, are that, induced by an advertisement inserted in the newspapers by the plaintiffs, upon the direction and at the cost of defendant, a person named Verrill called on plaintiffs, and they gave him a letter of introduction to the defendant, and induced him to go and see him. Prior to seeing defendant, Verrill had not, so far as the evidence shows, proposed to buy on the terms offered by defendant. He had only offered to buy if he could trade a lot that he owned for the farm. With the letter from plaintiffs he called on defendant, and offered to take the farm at the price offered, and transfer a lot owned by him, at the price of $5,000, in part payment. Defendant declined the offer, as he did not want the lot, and Verrill did not feel inclined to buy at the price asked, unless he could turn in the lot in part payment. The parties then separated, both apparently considering the negotiations at an end. Verrill returned to Minneapolis, and reported to plaintiffs the failure of his attempt to trade with defendant. After this plaintiffs had no further conversations or negotiations with Verrill in regard to the purchase of the farm; and it does not appear that at any time they tried to sell the farm to him, or to induce him to purchase it, on the terms fixed by defendant. All that appears is that they entertained the offer of Verrill to trade the lot for it, and induced him to see defendant upon it. Some weeks after Verrill's interview with defendant, in which he offered to trade the lot for the farm, he went to see him again, and bought the farm for one of his children at the price of $5,500. Had Verrill bought the farm at his first meeting with defendant, either on the terms first asked by defendant or upon an agreed departure from those terms, as by his paying for it in part with the lot, the connection between the acts of the plaintiffs and the purchase would have been apparent, and they might claim to have procured a purchaser. But it appears from the evidence that the effect of their effort to procure a purchaser terminated with the refusal of defendant to take the lot in part payment, and of Verrill to buy unless he could pay in that way, and as though the purchase was in fact upon considerations that grew up after, and were independent of the negotiations which began with plaintiffs. The case does not differ materially from Armstrong v. Wann, 29 Minn. 126, 12 N. W. Rep. 345. Order reversed.

HOLDRIDGE v. STOWELL.

(Supreme Court of Minnesota. November 12, 1888.)

1. ARBITRATION AND AWARD-SUBMISSION-VALIDITY.

Where parties to a controversy execute an agreement to submit it to arbitration, and it is clear that it was intended to be a statutory arbitration, but it is not valid as such, by reason of failing to comply with some essential requirement of the statute, it cannot have effect as a common-law submission.

2. SAME-STATUTORY SUBMISSION-ARBITRATORS.

It is essential, to a statutory submission to arbitration, that the agreement shall name all the arbitrators.

(Syllabus by the Court.)

Appeal from district court, Ramsey county; BRILL, Judge. Proceedings by E. A. Holdridge against Ida C. Stowell to set aside an award. The district court ordered the award vacated, and defendant appeals. John D. O'Brien, for appellant. Davis, Kellogg & Severance, for respond

ent.

GILFILLAN, C. J. The parties entered into an agreement in writing to submit a certain matter in difference between them to the arbitrament of two persons named, and such other person as might be chosen by those two. The agreement was in the form, (except as to the two arbitrators named choosing a third,) and was acknowledged in the manner, prescribed by statute. Chapter 89, Gen. St. 1878. The arbitrators had a hearing, and an award was signed by two, (one of those named in the agreement of submission not signing,) and filed with the clerk of the district court. All there is to show the selection of a third arbitrator is this award, signed by only one of the arbitrators. Holdridge, against whom the award was, moved the district court to vacate and set it aside on various grounds; among them, that it is invalid for the reason that the arbitrators were not chosen by the parties to the proceeding, and on this ground the district court made an order vacating it.

It is conceded that the agreement was not good as a statutory arbitration, for the reason that the arbitrators are not all named in it. See, also, Mining Co. v. Pratt, 101 Mass. 359. There is also no doubt that the district court, on the papers being filed, could determine that it was not good as a statutory arbitration, and therefore gave the arbitrators no jurisdiction to proceed upon it. Barney v. Flower, 27 Minn. 403, 7 N. W. Rep. 823. Nor can there be any doubt that if not in conformity to the statute, so as to give the arbitrators jurisdiction, the court could reject the award, or, what would amount to the same thing, strike it from the files or set it aside. Strictly, the court could not (except in an ordinary action on the award, or one in which it is interposed as a defense) go further than to decide that the submission and award are not good under the statute. The district court has, however, apparently gone further than this, and decided that it is not good for any purpose, either under the statute or at common law. If the order that the award be "vacated" is to be taken in the sense of annulling it, so that it shall be of no effect whatever, then the court decided that it ought not to stand as an award on a common-law submission. As appears from the order and the memorandum filed by the court, such was the sense in which the court used the word; and the parties have accepted and acted on this as its meaning, for most of the argument here, both printed and oral, was devoted to the question whether, being invalid under the statute, the award may still be good as an award upon a submission at common law. We will therefore decide that question. There is no question that the parties intended this to be an arbitration under the statute, and to be governed by all its provisions. Upon the question whether, when the parties intend and attempt to make an arbitration under the statute, and fail by not complying with all its essential provisions, it may be treated as a submission at common law, the authorities are at variance; there not being a considerable preponderance either way. The reasons in favor of the proposition are stated in Galloway v. Gibson, 51 Mich. 135, 16 N. W. Rep. 310, as well, perhaps, as in any case: “In law the parties may fairly be supposed to intend to do the very thing which they execute; and if they mistake the law, and are disappointed under that mistake, they should not be prevented from carrying out their agreement, if lawful and practicable, in some other way. The court then goes on to say that the mere question whether judgment should be entered by one process or another ought not to interfere to hinder the completion of the settlement; and on the other side the reason is stated in Sargent v. Inhabitants of Hampden, 32 Me. 78: "The report cannot be treated as an award at common law,

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without annulling the agreement of the parties, and substituting in its place a new and different contract." The cases which follow the rule adopted in 51 Mich. 135, 16 N. W. Rep. 310, can be sustained only on the theory that, upon

a submission to arbitration, the intention and agreement to submit are alone

material, and that the mode selected by the parties is not material. Common-law arbitrators not being abolished by the statute, of course the parties may agree on either mode. The differences between the two modes, and the incidents attending them, are so great that, when they have agreed on one, it can hardly be said that, provided the arbitrator makes an award, it is indifferent to the parties whether one or the other has been followed. We will mention some of these differences. At common law either party may revoke the submission. The arbitrators need not be sworn. Witnesses before them need not be sworn, unless the agreement to submit so require. The arbitrators must hear the parties in the presence of each other. When the award is made, the authority of the arbitrators is terminated, and the only way to enforce the award is in an ordinary action, subsequently brought. Under the statute, neither party can revoke without the consent of the other. The arbitrators are required to be sworn, as are also the witnesses. Notice being given, the arbitrators may hear one party in the absence of the other. From the time of filing the award the proceeding is pending in and under the supervision and control of the court, which may vacate the award in certain cases, and in others modify or correct it, and, as the statute seems to contemplate, may recommit it to the arbitrators, and the court enters judgment on the award, and the judgment will then stand as though entered in an ordinary action. The right secured to the parties to have these requirements of the statute complied with, and to have the results which it attaches to the submission, is important. It may have been the sole inducement which led to the submission, rather than have the controversy left to an ordinary action. Where it is clear that the parties intended and supposed they were making a submission securing it, to hold them to a mode of submission which does not secure it would surely be to annul the contract they have intended to make, and substitute in its place a new and different one. The decision that the award cannot stand for any purpose was correct. Order affirmed.

MILLER V. MILLER.

(Supreme Court of Minnesota. November 12, 1888.) WRITS-SUMMONS-WHO MAY SERVE-STATUTES-REPEAL.

When section 2, c. 185, Sp. Laws 1877, providing that summons to be served in Ramsey county shall be served by the sheriff, was repealed by chapter 371, Sp. Laws 1881, the provisions of the general law on the subject (section 56, c. 66, Gen. St. 1878) took effect in that county.

(Syllabus by the Court.)

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

This action was commenced by personal service of the summons and complaint upon the defendant by one Hoffman, a private citizen, not party to the suit. The defendant appeared specially, and moved to set aside the service on the ground that it was defective in not having been made by the sheriff of Ramsey county or his deputy. From an order denying the motion defendant appeals.

Chas. N. Bell, for appellant.

George E. Budd, for respondent.

GILFILLAN, C. J. Section 47, c. 66, Gen. St. 1866, provided that service of a summons in an action in the district court may be made by the sheriff of the county where the defendant is found, or by any other person not a party to the action. This is section 56, c. 66, Gen. St. 1878. By section 2, c. 185,

Sp. Laws 1877, it was enacted that summons to be served in the county of Ramsey shall be served by the sheriff of said county, or one of his deputies, etc. Chapter 371, Sp. Laws 1881, repealed said chapter 185. Defendant thereupon contends that section 2 of the act of 1877 repealed, so far as Ramsey county was concerned, so much of said section 47 as allowed the service of summons in Ramsey county by any person other than the sheriff; and that according to section 3, c. 4, Gen. St. 1866, the repeal of chapter 185 did not in that respect revive said section 47. Said section 3, c. 4, read: "Whenever a law is repealed which repealed a former law, the former law shall not thereby be revived, unless it is so specifically provided." We doubt that this applies to repeals by implication, or those effected by the provisions of an act being inconsistent with some provision of a former act. But, however this may be, we are satisfied it does not apply to a case like this. Section 47 established a general rule, intended to be uniform and operative throughout the state. The act of 1877 established a different rule for Ramsey county,-excepted that county from the general rule. When the act excepting it was repealed, that county came under the operation of the general rule established for the whole state. This must have been the understanding of the legislature; for if summons must still be served in Ramsey county by the sheriff, as defendant contends, then nothing whatever was effected by the repeal of section 2, c. 185. The proposition leads to this result: that while, for the rest of the state, there is a statute prescribing who may serve summons, there is no such statute operative in Ramsey county,-a result which the legislature could not have intended. Order affirmed.

BRAY v. DOHENY.

(Supreme Court of Minnesota. November 12, 1888.)

EJECTMENT NEW TRIAL AS OF RIGHT-WAIVER—AUTHORITY OF ATTORNEY.

An attorney for the defendant, in an action in ejectment, has authority to bind his client by a stipulation to dismiss a demand by defendant, under the statute, for a second trial.1

(Syllabus by the Court.)

Appeal from district court, Sibley county; EDSON, Judge.

Ejectment by Dennis Bray against Dennis Doheny. Judgment for plaintiff, and defendant demanded a second trial, which demand the attorneys of both parties stipulated should be dismissed. Defendant moved to set aside the stipulation. The motion was denied, and he appeals.

J. F. Fitzpatrick, for appellant. H. J. Peck and S. & O. Kipp, for respondent.

GILFILLAN, C. J. In this case, which was an action in ejectment, plaintiff had a verdict, and judgment was entered upon it. The defendant, within the time prescribed by the statute, paid the costs, and demanded a second trial. About a month afterwards the attorneys for the respective parties signed a stipulation, agreeing "that the demand for a retrial of said action be, and the same is hereby, dismissed, without costs to either party." Defendant afterwards moved to set aside this stipulation, which motion was denied, and the defendant appeals. The only ground on which it is claimed the stipulation ought to be set aside is that the defendant's attorney had no authority to make it. He had none but the general power conferred on him by his being employed to defend the action. As to the extent of the power, at the common law, of an attorney to bind his client, by his acts and agreements, during or

1 Respecting the extent of the implied authority of an attorney, see Brockley v. Brockley, (Pa.) 15 Atl. Rep. 646, and note; Haverty v. Haverty, (Kan.) 11 Pac. Rep. 364, and

note.

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