recover; fourth, by the court, when the plaintiff fails to appear on the trial, and the defendant appears and asks for the dismissal; fifth, by the court, on the application of some of the defendants, when there are others whom the plaintiff fails to prosecute with diligence." The next section reads: "In every case other than those mentioned in the last section the judgment shall be rendered on the merits." We readily recognize in the provisions of section 262 the intention to preserve, with some statutory modifications, the rights which a plaintiff had at common law to discontinue his action, or to take a nonsuit. The conditions are here prescribed, applicable to actions both of a legal and of an equitable nature, which authorize a termination of the action so as to leave the right of further action still existing. A dismissal of an action by the plaintiff, pursuant to the first subdivision, although a judgment for costs be entered against him, would operate only as a discontinuance or nonsuit; it would not bar another action for the same cause. Craver v. Christian, 34 Minn. 398, 26 N. W. Rep. 8; Gibson v. Gibson, 20 Pa. St. 9. Nor could it be otherwise if the defendant were to waive his right to costs. So the second subdivision authorizes such a dismissal, and with like effect, upon the written consent of the defendant, in cases where the plaintiff is not permitted, of his own motion, to dismiss. The effect of a mere dismissal, upon such consent being given, cannot be controlled or affected by the conditions upon which consent is given, if they do not involve a settlement of the cause of action. The stipulation in question expresses the consent of both parties that the actions be dismissed without costs. The defendant, of course, was not liable for costs upon a dismissal, and it waived its right to recover costs from the plaintiff. A judgment which should bar another action was not authorized by the stipulation, or the statute pursuant to which it was made. We have been referred to some decisions as holding a dismissal by agreement of the parties to be a bar to another action. Some of these cases, as in Merritt v. Campbell, 47 Cal. 542, and Wohlford v. Compton, 79 Va. 333, were decided, in part, upon other grounds than those involved in this case. But, in so far as those decisions can be regarded as supporting the theory that a mere dismissal by the consent or agreement of the parties is equivalent to the technical retraxit of the common law, we cannot follow them, in view of the provisions of our statute. The technical procedure of retraxit was more than the mere nonsuit or discontinuance of the action. It involved an open, voluntary, renunciation of his claim by the plaintiff in court. It was an admission that he had no cause of action. Thomason v. Odum, 31 Ala. 108; Pinner v. Edwards, 6 Rand. (Va.) 675. Nothing of that nature is to be inferred from an agreement under the statute merely for a dismissal of the action without costs. It does not imply a settlement of the cause of action. Hoffman v. Porter, 2 Brock. 156. Order affirmed. ROLFE v. BURLINGTON, C. R. & N. RY. Co. (Supreme Court of Minnesota. November 16, 1888.) Appeal from district court, Rock county; PERKINS, Judge. Daniel Rohrer, for Burlington, Cedar Rapids & Northern Railway Company, appelant. E. H. Canfield and Chas. C. Willson, for Jasper D. Rolfe, respondent. DICKINSON, J. The same question is here involved as in Rolph v. Railway Co., ante, 267, the decision in which is applicable to this case. Order affirmed. BROWN v. GRANT. (Supreme Court of Minnesota. November 16, 1888.) 1. PARTNERSHIP-EVIDENCE-HOLDING OUT-RIGHTS OF THIRD PARTIES. The liability of one who, not being in fact a partner, suffers himself to be held out as such, rests upon the principle of estoppel. The person seeking to enforce such a liability must have acted in his dealings with reliance upon the existence of a partnership relation or responsibility. 2. SAME-SUFFICIENCY OF EVIDENCE. Evidence considered insufficient to show notice or knowledge of such assumed relation at the time of the dealings in question. 3. SAME-EVIDENCE-ADMISSIBILITY. Proof of information upon that subject, communicated to the plaintiff, is admissible to show such notice or knowledge, and is not objectionable as hearsay evidence. 4. SAME-ACCOUNT STATED-EFFECT. The mere stating of an account between the actually contracting parties does not impose a liability upon another who, after the dealings in question, may be discovered to have been held out as a partner. (Syllabus by the Court.) Appeal from district court, Hennepin county; HICKS, Judge. Action by J. H. Brown against Vernon and G. S. Grant, doing business under the name of the "Vernon Dairy Company," for the price of milk sold by plaintiff and others, who assigned their causes of action to him. Judgment in far vor of plaintiff, and Grant appeals. S. R. Child, for appellant. Armstrong Taylor, for respondent. DICKINSON, J. By the complaint in this action the defendants are charged as copartners, doing business under the name of the "Vernon Dairy Company," for the price of milk sold by the plaintiff and by one Wright and by one Noble, between the 1st of May and the 1st of September; Wright and Noble having assigned their causes of action to the plaintiff. The defendant Grant interposed a defense, putting in issue the alleged copartnership, as well as the other facts alleged in the complaint. The question to which our attention will be principally given is whether the case justified a recovery against Grant. The respondent does not now attempt to sustain that recovery upon the ground that a copartnership actually existed during the period over which these sales extended, but upon the theory that Grant was, with his own consent, held out as a partner, responsible for the debts contracted in the prosecution of the business by Vernon. In this connection we will say, without referring particularly to the evidence, that there was evidence in the case to have justified the conclusion by the jury that Grant had been thus, by his own consent, placed in a position where he would be estopped to deny his responsibility, as to those who might be shown to have acted upon the faith of that responsibility. But as there was no partnership in fact, and no contract with Grant, it was necessary, in order to charge him with liability for the obligations of Vernon, with whom the contracts sued upon were made, that a case should be presented which would justify the inference that the parties whose accounts are here in question had reason to believe, at the time of the transactions, that Grant was or had been held out to be a partner. Thompson v. Bank, 111 U.S. 529, 4 Sup. Ct. Rep. 689; Denithorne v. Hook, 112 Pa. St. 240, 3 Atl. Rep. 777; Wood v. Pennell, 51 Me. 52; Hefner v. Palmer, 67 Ill. 161. Upon this point the plaintiff offered proof, which was excluded; and, with a view to another trial, we will say that the testimony of Vernon, as to whether he told these parties, when he made the contracts, that Grant was a partner, or responsible as such, should have been received, if the theory of an estoppel, upon which the plaintiff's case now rests, was suggested to the trial court. Such evidence would be admissible, (in connection with proof that Grant had allowed himself to be held out as a partner,) not to prove a partnership in fact, but to prove one of the conditions necessary to create an estoppel; that is, the understanding or information upon which the party claiming an estoppel had acted. Other evidence of a like character was excluded upon the trial. There was evidence that Noble understood, from the beginning of his dealings, that Grant was responsible as a copartner. It is doubtful whether the case shows any such understanding on the part of Brown prior to some time in June. There is shown the bare fact that, soon after he commenced shipping milk, he received letters signed by Vernon upon paper bearing the letter-head, "C. D. Vernon, Geo. S. Grant. Vernon Dairy Company." Brown was himself a witness in the case. But, without passing upon the sufficiency of the evidence to sustain the case of Brown in this respect, we will refer to the case of Wright. We find no evidence that, prior to some time in June, Wright had any notice or understanding that Grant had been held out as a partner; and, in the absence of such proof, there would be no cause of action against Grant for goods sold prior to that time. As to what had been sold to Vernon without information of, and without regard to, any supposed relationship of Grant to the transaction, there would be no ground for an estoppel. If it be assumed that, after the time in June above referred to, when, as certain evidence went to show, Brown and Wright had notice of Grant's supposed responsibility, that would not help the case as it stands; for there is no proof as to the amounts of the indebtedness accruing for goods sold after that date, and the extent to which the verdict may be erroneous cannot be pointed out. A new trial seems to be necessary. It may be added that the amount of Noble's account was not accurately shown, if, as seems probable, from the undisputed testimony of Vernon, some deduction should have been made for sour milk. The objections to the verdict to which we have referred were not obviated by the fact that the accounts of Brown and Wright were agreed upon and stated between them and Vernon on the 6th of September. That does not avoid the difficulty arising from want of proof of Grant's liability for so much of the account as accrued prior to an indefinite date in June. His liability rests only upon the ground of estoppel; and, as to such tranactions as were unattended by the conditions creating an estoppel, he could not be held. As to such transactions the mere stating of the accounts with Vernon did not impose a contract liability upon Grant, nor estop him from disputing his liabil ity. Order refusing a new trial reversed. DEAN v. CHICAGO, M. & ST. P. RY. Co. (Supreme Court of Minnesota. November 16, 1888.) 1. RAILROAD COMPANIES-FIRES-EVIDENCE-SUFFICIENCY Evidence considered as sufficient to justify the conclusion that a fire, which started in an open field near a railroad track, immediately after the passing of a train, was caused by the engine.1 2. SAME-NEGLIGENCE-EVIDENCE-SUFFICIENCY. An expert witness for the defendant, testifying that, with the appliances in use to prevent such accidents, the fire could not have been so caused, unless the engine had been out of repair, considered in connection with the statutory presumption of negligence, as justifying a verdict against the defendant, although other evidence tended to exculpate the defendant.1 (Syllabus by the Court.) Appeal from district court, Mower county; FARMER, Judge. Action by Sophronia Dean against the Chicago, Milwaukee & St. Paul Railway Company for damages from fire caused by defendant's engine. Judgment in favor of plaintiff, and defendant appeals. Kingsley & Shepherd, for appellant. French & Wright, for respondent. DICKINSON, J. The evidence justified the conclusion that the fire complained of was set by the defendant's locomotive No. 146. This is a fair, if 1 Fire caused by sparks from an engine is prima facie evidence of negligence; and, where the company offers no evidence to rebut such presumption, it cannot complain of a charge that it can be rebutted only by proof that the engine was properly constructed with the best approved appliances for preventing escape of fire. Railway Co. v. Horne, (Tex.) 9 S. W. Rep. 440. In general, as to the liability of railroad companies for damages caused by fires originating from sparks escaping from locomotives, and what is sufficient evidence of negligence in actions for such injuries, see note, Id; Railroad Co. v. Bohannan, (Va.) 7 S. E. Rep. 236, and note; Bradshaw v. Railroad Co., 1 N. Y. Supp. 691. not the only reasonable, inference from the facts disclosed, showing that the fire started in the plaintiff's open field, about 60 feet from the railroad track, and far from any building or highway, immediately after the passing of the locomotive and train westward; that a strong wind was blowing from the south, and the fire started north of the track; that no persons were in the vicinity; and that there was no apparent cause of the fire except the passing train. There is more reason for contention upon the point as to whether the evidence fully rebutted the statutory presumption of negligence on the part of the defendant, so that the verdict must be regarded as unjustified. Without commenting upon the evidence of several witnesses for the defendant,other than Anderson, to whose testimony we will hereafter refer,-we will only say, generally, that it tended to show that the engine was provided with the best means for preventing the escape of fire; that it was in good order; and that the engineer and fireman were competent to perform their respective duties. In brief, it may be conceded that such testimony tended to show that there was no negligence on the part of the defendant. But the defendant presented, as a witness, one Anderson, who was shown to be an expert concerning the matters in question. He was the general foreman of the mechanical department of this division of the railroad, and had been a practical locomotive engineer. He testified particularly as to the improved spark-arrester, with which this engine was provided, and the manner of its operation. Referring to this apparatus, he said: "The front end is supposed to be cleaned out at intervals of about thirty or forty miles." After speaking of the qualities of this apparatus, he expressed it as his opinion that, in the ordinary running of the engine, it is not possible for sparks to escape through this sparkarrester, "if the extension front is properly cleaned out." He further testified that fire cannot get out of the ash-pan when the engine is in motion. The following question and answer conclude the testimony: "Question. If a fire is set by an engine, it would necessarily have to be out of repair? AnIt would have to be considerably so. It would have to be out of repair." If this testimony was worthy of credit, it would lead to the inference that the engine was out of order in some particular, perhaps in not having been cleaned out within the last 30 or 40 miles of its course, there being no testimony upon that subject; for there is no reason to doubt the correctness of the conclusion of the jury that this engine did cause the fire in question. In view of such testimony from a qualified expert witness, presented as such on the part of the defendant, and supporting the statutory presumption of negligence, we would not be justified in setting aside the verdict of the jury, which has been approved by the trial court, unless, at least, the other evidence in the case were most complete and convincing. The case is in some respects similar to that of Karsen v. Railroad Co., 29 Minn. 12, 11 N. W. Rep. 122. Order affirmed. LOMBARD v. MAYBERRY et al. (Supreme Court of Nebraska. October 31, 1888.) 1. BONDS-FORGED SIGNATURE-RIGHT OF SURETY-ATTORNEY AND CLIENT. In an action on a bond, containing the names of A., B., and C. as sureties, the signatures appearing in the foregoing order, there was evidence that the signatures of A. and B. were forgeries. C. testified that his signature was genuine, and stated, on cross-examination, that, when he signed, all the other signatures were on the bond; that he signed it in the office of D., attorney for the obligee, who handed him the pen with which he signed. The court charged that if the jury found that C. signed after A. and B., believing their signatures were genuine, but that they were really forged, and if they found that D. was then acting as the obligee's agent, and saw C. sign, and handed him the pen with which he signed, then C. was not legally bound. Held, that the instruction was unwarranted. 2. SAME-INDEMNITY BOND-CONSTRUCTION. A bond recited that S., the principal, had requested L., the obligee, to purchase of him negotiable paper and securities, and as an inducement, had agreed to guar anty their payment at maturity: and that, in pursuance of such agreement, the principal and sureties in said bond did thereby guaranty to L. that every note and security received through S. should be paid at maturity. "This undertaking, however, is limited, in amount of loss or default to be chargeable to the sureties, to the sum of $5,000. Held, that the sureties were liable for the aggregate amount or face value of all the notes and securities negotiated according to and during the time limited by the terms of the bond, and not exceeding $5,000, with interest. 3. SAME-EXTENT OF INDEMNITY-EVIDENCE. The negotiable instruments referred to in the bond were admissible for the purpose of fixing the amount of plaintiff's recovery, without proof of their execution, although such execution was denied by the answer. 4. WITNESS-EXAMINATION-PRIVILEGE-CRIMINATION. A witness in whose possession certain notes had been, which were alleged to have been fraudulently altered, testified, on his examination in chief at the taking of his deposition, that the notes were signed in his presence by the persons whose signatures appeared thereon. On cross-examination he was asked whether the notes when signed were in their present condition; which question he declined to answer, on the ground that it might tend to criminate him. The court below held that he should have answered, as by his previous answer he had waived his privilege; and suppressed the deposition. Held error. Error to district court, Johnson county; BROADY, Judge. This was an action on a bond by Wallace S. Smith, as principal, and Phineas Jones, Almon Reed, E. W. Smith, Moses Roberts, and Charles N. Mayberry, as sureties, to B. Lombard, Jr., of which the following is the substance: "Whereas, the said Wallace S. Smith has requested the said B. Lombard, Jr., to purchase of him negotiable paper and securities, and, to induce him to do so, has agreed to be responsible as guarantor of payment of such paper at maturity as he may offer to sell, or does sell, or may have heretofore sold, to said Lombard, Jr., now, therefore, it is by the said principal and sureties hereby expressly agreed, undertaken, and guarantied to the said Lombard, Jr., and his assigns, that all and every note and security negotiated by him, sent and remitted for sale, and sold to the said Lombard, Jr., or through his agency and correspondence, is by the said principal and sureties, jointly and severally, guarantied to be paid by the maker thereof to said B. Lombard, Jr., or his assigns, at its maturity, at the office of the said B. Lombard, Jr., in Lincoln, Neb. If not so paid by the maker at maturity, or if so paid by said makers to said Smith, and the amount so paid not remitted or paid to said Lombard or assigns, without delay, or if any such amounts have been already paid to said Smith, and not remitted as aforesaid, within thirty days from this date, pay same to said Lombard; and if not already paid to said Smith, and not now due, then they shall pay same within thirty days of maturity of said note or notes, although no special contract of that character be by them, or either of them, written, or any negotiable paper sold, to said B. Lombard, Jr., or though mere assignment or general indorsement only be on such paper written; it being expressly understood and agreed by the parties to this undertaking that the said Smith has, during the year commencing June 1, 1883, been engaged in buying, taking, and selling, to said Lombard and assigns, negotiable securities, and has sold to said Lombard negotiable securities, amounting to $9,750.12, and intends to continue in the business of buying and selling negotiable securities, and that this undertaking of guaranty is intended to apply to all securities heretofore, as well as hereafter, negotiated to said B. Lombard, Jr., or through his financial agency by said W. S. Smith, whether such securities now exist or are hereafter made, and is for the purpose of giving said Smith credit, and securing to him an opportunity to close up last year's business, and collect himself said securities so sold for said Lombard, and of giving said Smith in his business good standing, character, and credit, to enable him the better to conduct his business, and to obtain sale of securities; and the surety guarantors hereby each severally waive notice from said B. Lombard, Jr., of the purchase or receipt by him from said W. S. Smith of securities, and of the description and amount and of the non-payment thereof, |