J. B. Smith, for appellant. F. L. Putney tion of the failure of consideration to the and O. A. Williams, for appellee. jury. From a careful examination of the record it appears that counsel for the defendant in framing his answer adopted the theory of his client that there was a total failure of consideration for the note in suit, and relied upon that fact as one of his defenses. ▲ reading of the bill of exceptions discloses that the defendant's evidence did not support that theory. The testimony, when con tentions, tends to show that the boxing of one wheel of the wagon was found to be cracked some few months after defendant purchased it. But his own witnesses testified that he used the wagon in the ordinary way, that at one time he took a load of about 50 bushels of shelled corn to the market with it, and continued to use it for general purposes until about the 1st of April, 1907, when he had it repaired by a wheel BARNES, J. Action on a promissory note, which was dated December 31, 1902, and due one year from the date thereof. The petition was in the usual form, with an additional allegation that the defendant had paid $5 on the note, which was indorsed thereon, within five years next before the commencement of the action. The defend-strued most favorably to the defendant's conant, by his answer, admitted the execution of the note, denied that any payment had been made thereon, and alleged that the note sued on was given for the purchase of a wagon, which was warranted in every respect by the plaintiff to the defendant "as being a good wagon, both as to material and workmanship; but said wagon proved to be worthless for the purpose for which it was intended, and a source of expense to the defendant, and the plaintiff neglected and re-wright, who testified that he put in a new fused to repair or fix the same, or to replace it by a new wagon as he had agreed to do, in case the defendant found that the said wagon was faulty in any respect, although often requested by the defendant so to do, and therefore this defendant has received no valuable consideration whatever, save and except the said worthless wagon, and that the plaintiff has wholly neglected and refused to comply with said conditions of his warranty of said wagon." Plaintiff by the reply admitted that the note was given for the purchase price of a wagon, alleged that the wagon was warranted as to material and workmanship for one year only, and denied all of the other allegations of the answer. The cause was tried in the district court of Antelope county upon the issues thus presented. The plaintiff had the verdict and judgment, and the defendant has appealed. [1, 2] Contention is made that the verdict is not sustained by the evidence, and that the court erred in not submitting the ques axle-tree, part of the skein and boxing, and reset the spokes to the wheel and set the tires; that notwithstanding more than four years had elapsed after defendant purchased the wagon the wheelwright found no other defects in it. Defendant made no claim for cost of repairs, and it appears that the plaintiff offered to allow him a credit of $7 therefor if he would pay the balance of the note. This he refused to do. With the evidence in the condition above indicated, the district court submitted the question of the statute of limitations to the jury under proper instructions. This was the only defense upon which there was any conflict in the evidence, and upon this question the jury found for the plaintiff. It seems clear from the whole record that the defendant had a fair trial, and being unable to show a failure of consideration, which was one of his principal defenses, judgment was properly rendered against him. Finding no error in the record, the judgment of the district court is affirmed. MEMORANDUM DECISIONS ARNOLD v. ASH et al. (Supreme Court of Minnesota. Dec. 1, 1911.) Appeal from District Court, Lake County; Wm. A. Cant, Judge. Action by Mette L. Arnold against Mary M. Ash and others. Judgment by default against the Northern Security Company. From an order vacating this judgment, plaintiff appeals. Affirmed. John B. Arnold, for appellant. William J. Stevenson, for respondent. PER CURIAM. The plaintiff obtained judgment by default_against the Northern Security Company. The defendant company duly moved the court in which the judgment was entered for an order vacating the judgment, and for permission to appear and defend in the action and to serve and file its answer therein. The plaintiff appeared in opposition to the motion. The court, after hearing, granted the motion. The answer on its face states a meritorious defense. The showing made was in all respects sufficient to sustain the order of the trial judge granting the motion. Order affirmed. BERGREN V. VERMILLION LUMBER CO. (Supreme Court of Minnesota. Dec. 8, 1911.) Appeal from District Court, St. Louis County; J. D. Ensign, Judge. Action by Magnus Bergren against the Vermillion Lumber Company. From an order denying a motion for judgment or new trial, plaintiff appeals. Affirmed. I. Grettum, for appellant. W. G. Bonham, for respondent. PER CURIAM. We have carefully considered the evidence, and reach the conclusion that there was no basis upon which the jury could do more than guess at the amount of damages that plaintiff had sustained by the defendant's alleged breach of its agreement. The trial court was justified in directing a verdict. Order affirmed. CEREAL PRODUCTS CO. v. MINNEAPOLIS & ST. L. R. CO. et al. (Supreme Court of Minnesota. Dec. 1, 1911.) Appeal from District Court, Hennepin County; Andrew Holt, Judge. Action by the Cereal Products Company against the Minneapolis & St. Louis Railroad Company and others. Verdict for plaintiff. From an order denying motion for judgment or a new trial, the Illinois Central Railroad Company appeals. Affirmed. Richard & Coe, for appellant. E. J. Grover, for respondent. was sufficient, and the evidence shows a depreciation in the market price of linseed meal, as claimed by plaintiff. The questions presented were for the jury, and we discover no reason for disapproving the action of the trial court in upholding their verdict. There were no errors justifying a new trial. Order affirmed. DAILY V. CORLISS. (Supreme Court of Minnesota. Nov. 24, 1911.) Appeal from District Court, Otter Tail County; C. A. Nye, Judge. Action by D. D. Daily, executor, against E. E. Corliss. Verdict for plaintiff. From an order denying a motion for judgment notwithstanding the verdict or a new trial, defendant appeals. Affirmed. J. W. Mason and E. E. Corliss, for appellant. How, Butler & Mitchell and Donohue & Stephens, for respondent. PER CURIAM. This is an appeal from an order denying the defendant's motion for judg ment notwithstanding the verdict or a new trial in an action to recover a commission on the sale of land by the plaintiff's intestate. The general facts of the case and the controlling issue were stated in the opinion of this court in disposing of a former appeal in this case. 129 N. W. 1048. The pivotal question on this appeal is, as it was on the former appeal, whether a second contract for the sale of the land, made by the defendant in person with the same party with whom a former contract for the sale of the land had been made through the agency of plaintiff's intestate, which after default therein was canceled by a written contract of the parties, was in fact a continuation of the first contract, or a new transaction after a bona fide cancellation of the first one. We held on the former appeal that this question was for the jury. The evidence on the last trial was substantially the same as on the first one, and we hold that the question on the last trial was also one of fact for the jury, and that the ver dict is sustained by the evidence. The defendant assigns a number of errors as to the rul ings of the trial court on the admission of evidence and as to its instructions to the jury. We find no reversible error in the court's rulings as to the admission of evidence, or in its charge to the jury, when it is considered as a whole. We are not entirely clear that the instruction to the effect that, if the jury found for the plaintiff, interest should be added from January 1, 1908, as the commission was to be paid out of a payment for the land to be made on that date, but the evidence shows that such payment was not made until the fall of 1908. Equitably, however, the defendant ought, if liable at all, to pay interest on the amount found due from the date fixed by the court, if not from January 10, 1907. The record shows that a mortgage was given on that day by the PER CURIAM. Action for damages for the failure of defendants promptly to ship and deliver at place of destination certain linseed meal consigned by plaintiff over defendant's road to New Orleans, from whence it was to be forwarded by boat to Holland. By reason of the negligence of defendants the meal failed to arrive at New Orleans in time for the contemplat-purchaser to the defendant securing the pured reshipment to Holland, and plaintiff alleges a loss or damage in the fall of the market price of the meal. Plaintiff had a verdict, and defendant Illinois Central Railroad Company appealed from an order denying its alternative motion for judgment or a new trial. The points made on this appeal are: (1) That the com- done. Order affirmed. plaint contains no sufficient allegation of damages; and (2) that no damages were shown by the evidence. Our examination of the record leads to an affirmance. The contentions of appellant do not require discussion or an extend chase price, with interest at 6 per cent. per annum. However this may be, if the court by inadvertence or otherwise named the wrong date from which to compute the interest, its attention should have been called to the alleged error before the jury retired, which was not ECHOLS v. ILLINOIS CENT. RY. CO. (Supreme Court of Minnesota. Dec. 29, 1911.) Appeal from Municipal Court of Minneapolis; against the Illinois Central Railway Company. does not appear by the return that all the eviJudgment for plaintiff. From an order denying a new trial, defendant appeals. Affirmed. Richard & Coe, for appellant. Stiles & Devaney, for respondent. to PER CURIAM. This action was brought in the municipal court of the city of Minneapolis recover damages from the defendant, the initial carrier, for loss due to the negligence of the defendant and the connecting carrier in transporting a car load of sweet potatoes for the plaintiff from Ullin, Ill., to St. Paul, Minn. The jury returned a verdict for the plaintiff for $372.52, and the defendant appealed from an order denying its motion for a new trial. The sole question presented by the record in this court is whether the verdict is sustained by the evidence. The defendant contends that the evidence fails to show any negligence on its part, and that in no event was the plaintiff, under the evidence, entitled to a verdict in excess of $207.30. The evidence, although conflicting in material matters, fairly sustains the verdict and the amount thereof. Order affirmed. ERICKSON V. CHICAGO GREAT WESTERN R. CO. (Supreme Court of Minnesota. Dec. 22, 1911.) Appeal from District Court, Dodge County; Arthur B. Childress, Judge. Action by Samuel Erickson against the Chicago Great Western Railroad Company. Verdict for defendant. From an order denying a new trial, plaintiff appeals. Affirmed. S. L. Pierce, for appellant. Briggs, Thygeson & Everall and H. Loomis, for respondent. PER CURIAM. Plaintiff, residing near Hayfield, a village through which defendant operates a line of railroad, drove into town with his team of horses. At about 7 o'clock in the evening, and at about dark, the horses were hitched to a post in front of a place of business upon one of the village streets. The horses broke from their fastenings and ran away They ran down Broad street, over and across which several of defendant's railroad tracks extend. A through passenger train was approaching this crossing at the time. The horses passed all the tracks on the street mentioned, save the last, which was blocked and further passage prevented by certain freight cars, which at the time were being switched by railroad employés. Upon reaching this obstruction the horses turned around and started back in the direction from which they came, and were struck by the incoming train. One of them was killed; the other, injured. Plaintiff sued for damages, charging the death and injury to his horses to the negligence of defendant. Defendant had a verdict, and plaintiff appealed from an order denying a new trial. A careful examination of the record leads to an affirmance. The evidence fully justified the jury in finding defendant free from negligence, either in the operation of the train at an excessive rate of speed, or in the failure of its employés in charge thereof to keep a proper lookout for persons or animals likely to be near or upon the track. The charge of the court complained of was in harmony with the evidence, fairly considered, and the exception thereto presents no reversible error. Order affirmed. JORDAN V. JORDAN. (Supreme Court of Minnesota. Nov. 17, 1911.) Appeal from District Court, Blue Earth County; A. R. Pfau, Judge. Action by Bertha C. Jordan against Albertus Jordan. Verdict for plaintiff. From an order denying a new trial, defendant p peals. Affirmed. B. G. Reynolds and Wilson Borst, for appellant. H. L. & J. W. Schmitt, for respondent. PER CURIAM. This is an appeal from an order denying defendant's motion for a new dence received at the trial is before this court. The findings of fact and the conclusion of law of the trial court are not returned, and the assignments of error are insufficient to raise any question, except that of the right of plaintiff to a dismissal of the action. In this condition of the record, no question is properly presented to this court for consideration and decision. We have, however, considered the two points urged by the appellant: First, that the evidence did not establish the cause of action set out in the complaint; and, second, that the plaintiff was not, through any judgment lien, entitled to move to set aside a fraudulent judgment under which the property against which he claimed a lien was about to be sold-and are of the opinion that neither claim of the appellant has merit In view of the condition of the record, a statement of the facts shown by the record out of which these questions arise is not possible. Affirmed. KOCHENDORFER v. McKERCHER. (Supreme Court of Minnesota. Dec. 22. 1911.) Appeal from District Court, Red Lake County; William Watts, Judge. Action by George Kochendorfer, by C. E. Boughton, guardian ad litem, against R. J. McKercher. Judgment for plaintiff, and defendant appeals. Affirmned. G. Halvorson, for appellant. Chas. E. Boughton, for respondent. cover $70, the balance alleged to be due to him The LATTA v. MILLER et al. (Supreme Court of Minnesota. Nov. 17, 1911.) Appeal from District Court, Ramsey County; Oscar Hallam, Judge. Action by Minnie E. Latta against Joseph Miller and others. Verdict for defendants. From an order denying judgment notwithstanding the verdict or a new trial, defendants appeal. Affirmed. Thos. J. Newman, for appellants. B. F. Latta and W. G. Bonham, for respondent. PER CURIAM. In this, a personal injury action, the plaintiff upon the trial obtained a verdict against the defendants. From an order denying their alternative motions for judgment MOGENSEN v. MILLER et al. (Supreme Court of Minnesota. Nov. 17, 1911.) Appeal from District Court, Ramsey County; Oscar Hallam, Judge. Action by E. O. Mogensen against Joseph Miller and others. Verdict for plaintiff. From an order denying motion for judgment or a new trial, defendants appeal. Affirmed. Thos. J. Newman, for appellants. B. F. Latta and W. G. Bonham, for respond ent. PER CURIAM. The facts involved and legal questions raised in this case are substantially like those in Latta v. These Defendants, 133 N. W. 1133; and, for the reasons there stated, the order of the trial court in this case is affirmed. Affirmed. court. The principal question raised upon this appeal is whether the evidence sustains a verdict against these defendants. Plaintiff received an injury while attending a performance billed and advertised as "Miller Bros.' 101 Ranch Wild West Show," by the breaking of a board used as a seat. The defendants claim that they were not the proprietors of or persons conducting the show, but that a corporation organized with the name "101 Ranch Wild West Show" and the Robbins Company conducted the show, and that the defendants individually were mere salaried agents. Concededly the evidence did not establish the existence of such a corporation de jure. There was some evidence tending to show that these defendants and two other brothers organized a company, which thereafter conducted the show as a de facto corporation. On the other hand, it appeared that the show was advertised as above stated, indicating that Miller Bros. were the proprietors, that the two defendants against whom the verdict was rendered were present at performances, assuming a general direction of the business connected with the show, and that a contract under which the show was being conducted was made by Miller Bros., as individuals, and not by the corporation. In this condition of the evidence, it was clearly a question of fact for the jury whether the show was being conducted by the defendants as PER CURIAM. The plaintiff, a brakeman individuals or by a de facto corporation. The in the defendant's employ, was injured while verdict of the jury involving a finding that the momentarily standing upon one track to obshow was being conducted by the defendants as tain a view of a string of cars on the adjoin individuals, is sustained by ample evidence. ing track. While the plaintiff was so engaged We find no errors in the rulings of the court in his duties as brakeman, a detached caboose, in admitting evidence or in the charge submit-running down the track on which he was standting the case to the jury. The motions of the defendants were properly denied. Affirmed. LIEDER v. SCHROEDER. (Supreme Court of Minnesota. Dec. 22, 1911.) Appeal from District Court, Nicollet County; I. M. Olson, Judge. Action by Robert Lieder against August Schroeder. Finding for defendant. From an order denying a new trial, plaintiff appeals. Affirmed. Albert Pfaender and Geo. T. Olsen, for appellant. Jos. A. Eckstein (Ella Steed and Alfred W. Mueller, of counsel), for respondent. PER CURIAM. This action was brought to establish the correct boundary line between the lands of the parties. The question in dispute was the location of a government quarter section corner. The trial court decided the case in defendant's favor, and denied a motion for a new trial. Plaintiff appealed from the order. The only question on this appeal is whether the findings of the trial court are sustained by the evidence. We have examined the record, and conclude that the order appealed from must be affirmed. Order affirmed. PETERSON v. CHICAGO GREAT WESTERN R. CO. (Supreme Court of Minnesota. Jan 2, 1912.) Appeal from District Court, Mower County; Nathan Kingsley, Judge. Action by Isaac A. Peterson against the Chicago Great Western Railroad Company. Verdict for plaintiff. From an order denying a new trial, defendant appeals. Affirmed. Briggs, Thy geson, Loomis & Everall and French & Sasse, for appellant. Dunn & Carlson and Catherwood & Nicholsen, for respondent. ing, struck and injured him. The plaintiff tes tified that his conductor had told him, in effect, that he would keep the train in charge of another conductor off from this track. The caboose causing the injury was a part of such other train. Under the evidence the questions of the defendant's negligence and the plaintiff's contributory negligence were questions for the jury. We have examined all the evidence and rulings involved in the numerous points raised by counsel on the appeal, and we find no error prejudicial to defendant. From the evidence reasonable men might well draw widely different inferences as to the extent of the plaintiff's injury. While the amount of damages awarded in the verdict is large, we cannot say that it is not supported by the evidence. Affirmed. RUNQUIST v. FERRELL et al. (Supreme Court of Minnesota. Dec. 1, 1911.) Appeal from District Court, Mille Lacs County; M. D. Taylor, Judge. Action by John Runquist against W. H. Ferrell and others. Verdict for plaintiff. From an order denying a new trial, W. H. Ferrell & Co. appeal. Affirmed. E. L. McMillan, for appellants. Baldwin & Baldwin and J. T. Pearson, for respondent. PER CURIAM. The substantial question in this case is whether defendant was entitled to MINNEAPOLIS PLOW WORKS v. BURNan instructed verdict at the close of the trial. HAM. (Supreme Court of Minnesota. Nov. The action was for the breach of a contract 17, 1911.) Appeal from District Court, Henne- for the purchase and sale of five car loads of pin County; William E. Hale, Judge. Action potatoes, and plaintiff had a verdict. We find by the Minneapolis Plow Works against C. O. in the record evidence sufficient to send the case Burnham. From an order refusing a new trial, to the jury upon all questions involved under defendant appeals. Affirmed. C. Henningsen, the pleadings, and conclude, therefore, withfor appellant. George S. Grimes, for respond-out discussion, that the court below properly ent. PER CURIAM. Action to recover on two promissory notes made by defendant to plaintiff. The answer alleged fraud and want of consideration. The case was tried by the court without a jury, and decided in favor of plaintiff. Defendant appealed from an order refusing a new trial. We have examined the record, and reach the conclusion that there was refused to direct a verdict for defendant. The record presents no errors justifying a new trial. Order affirmed. SAVAGE v. HENDRICKS. (Supreme Court of Minnesota. Dec. 29, 1911.) Appeal from District Court, Hennepin County; Wilbur F. Booth, Judge. Action by D. L. Savage against existence, and one writing of that character had been in his possession. The plaintiff was under the burden of establishing his case by clear and convincing evidence. His parol testimony, in the main unsupported by corroborating evidence, was, as to many details, improbable. The trial judge having on sufficient evidence found that the deed from the plaintiff to the defendant conveyed an absolute title, the circumstances under which the defendant purchased the property became unimportant. We find no error in the complained-of rulings of the trial judge admitting or excluding evidence. Order affirmed. From an order denying a new trial, plaintiff; tending to support such claim had once been in appeals. Affirmed. Wright & Matchan, for appellant. Savage & Purdy, for respondent. PER CURIAM. The plaintiff brought the present action, involving 16 lots in an addition to the city of Minneapolis, to have a certain deed of said lots made by him to one Brown determined to have been made as security for a loan, which loan had been fully repaid, and to have a deed from said Brown to the defendant declared void, because taken by the defendant with notice of the plaintiff's title to the lots, and to have the plaintiff adjudged the owner of the lots, free from any right, title, or interest of the defendant. The defendant claims under the deeds from the plaintiff to Brown and from Brown to the defendant. Upon the trial of the case the court found that the deed from the plaintiff to Brown was not made as security, but that thereby the plaintiff conveyed to Brown the lots involved, without any reservations or restrictions, oral or otherwise, and further, that the defendant procured the convey ance of the lots from Brown for a valuable consideration, without any knowledge or notice of any claims or interest of the plaintiff thereto or therein. As conclusions of law the court found that the defendant is the owner of the lots in fee simple, and plaintiff has no estate or interest therein. The case is brought here by the appeal of the plaintiff from an order denying his motion for a new trial. The principal question raised by the numerous assignments of error is the sufficiency of the evidence to sustain the finding of the trial court in reference to the conveyance from plaintiff to Brown. Upon examination of the record we are satisfied that the evidence amply sustains such finding. The deed was made by the plaintiff to Brown some 16 years prior to the commencement of the present action. About 13 years after the making of the deed, and 5 years after the claimed payment of a debt to secure which the deed was claimed to have been given, the grantee in the deed, Brown, died. The plaintiff produced no documentary proofs supporting his claim that the instrument, in form a warranty deed, was in fact intended as a mortgage, although by his testimony writings WOLD v. CROOKSTON LUMBER CO. Affirmed. (Supreme Court of Minnesota. END OF CASES IN VOL. 133. |