tions they are deemed to have impliedly consented to a disposition of the case without the aid of a jury, by the submission of all questions to the court, and if in disposing of the case it should become necessary for the court to determine issues of fact, such parties will not thereafter be permitted to urge that such issues should have been submitted Appeal from District Court, Olmsted County; Arthur H. Snow, Judge. Action by Fred Fieck against the Chicago Great Western Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed. Briggs, Thygeson & Everall, Burt W. Eaton, and H. Loomis, for appellant. Eckholdt & Eckholdt, for respondent. START, C. J. This is a personal injury action, in which the plaintiff had a verdict for $3,150 in the district court of the county of Olmsted, and the defendant made a motion for judgment in its favor notwithstanding the verdict. The trial court made its order denying defendant's motion, and judgment was entered upon the verdict. The defendant appealed from the judgment. No motion for a new trial was made. to the jury. Umsted v. Colgate Elevator Co., 18 N. D. 309, 122 N. W. 390. The act of discharging the jury by the implied consent of the parties did not operate to change the action from a jury case to one triable under the so-called Newman law. If the parties, instead of thus impliedly waiving the jury at the close of the testimony, had at the begining of the trial expressly waived such jury, the case could not have been tried de novo in this court under the statute (section 7229, R. C. 1905), for, since the amendment by chapter 201, Session Laws of 1903, cases properly triable to a jury, whether thus tried or not, have not been trible de novo on appeal. Barnum v. Gorham Land Co., 13 N. D. 359, 100 N. W. 1079. Decisions by this court un-requested instructions. None of them is releder the former statute, in so far as they uphold a contrary practice, are not in point under the present statute. The statute in force at the time they were decided expressly authorized trials de novo in this court in all cases tried to the court without a jury, whether they were actions at law or suits in equity. [3] Manifestly, therefore, we are powerless to review any of the alleged errors in this record, as none are specified in the statement of case, and there is no contention that any errors appear on the face of the judgment roll proper. It follows that the judgment appealed from must be affirmed; and it is so ordered. Ten of the 17 assignments of error relate to alleged errors of the trial court in its instructions to the jury and in refusing to give vant on this appeal; for, if the court erred in the respects complained of, the remedy was a motion for a new trial. The other assignments of error raise the question whether the trial court erred in denying the defendant's motion for a directed verdict in its favor and in denying the motion for judgment. The contention of the defendant as to this question is that the evidence conclusively shows as a matter of law that the defendant was not negligent in the premises, but that the plaintiff was guilty of contributory negligence and assumed the risks. The evidence, taking the most favorable view of it for the plaintiff, was sufficient, if satisfactory to the jury, as it seems to have been, to establish, with others, the evidentiary facts following: The plaintiff was a man of mature years FIECK V. CHICAGO GREAT WESTERN and a railroad sectionman of 20 years' ex RY. CO. perience. He was in the employ of the de(Supreme Court of Minnesota. Nov. 10, 1911.) boss at the time he was injured, and had fendant at Douglass, this state, as a section (Syllabus by the Court.) MASTER AND SERVANT (§§ 190, 286, 288, 289*) The plaintiff was injured by the alleged negligence of defendant's freight conductor, while he was engaged in unloading, under the direction of the conductor, a motor car from a railway car which was a part of a live train in charge of the conductor. Held that, if the taking charge of the unloading by the conductor was reasonably necessary, of which he was prima facie the judge, for the orderly and timely running of his train, he had the right so to do, as the representative of the defendant, and. further, whether the defendant was guilty of negligence, or the plaintiff assumed the risks, or was guilty of contributory negligence, were all questions of fact under the evidence. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 449-474, 1010-1050, 1068-1132; Dec. Dig. $$ 190, 286, 288, 289.*] been for some years prior thereto. On August 4, 1910, he was ordered by his roadmaster to meet a freight train at Douglass and unload a motor car, which weighed 1,000 pounds and was more than six feet in height. The plaintiff met the train, which was 40 minutes late, with three assistants prepared with skids to unload the motor car, which was in one of the freight cars of the train. The conductor in charge of the train was in a hurry to unload the motor car in order to get to Rochester, eight miles away, where an oncoming passenger train would pass his train. As soon as he saw the plaintiff with the skids, he ordered him to throw them away, and told him that he did not want him to be all day unloading the car, and ordered him and his assistants into the car. The plaintiff and his men obeyed the order and went into the car. The conductor took exclusive control of unloading the motor car, which was then standing upright on the floor of the car, which was some four feet above the ground. It was then pushed to the door of the car and just far enough out of the door so that it did not tip. The conductor then ordered the plaintiff and some of the men to go outside, and they went out, leaving four men in the car holding the motor car. The plaintiff followed the instructions of the conductor, and assumed no control whatever. When the plaintiff and the three men got outside and to the door of, the car, the motor was standing practically at a balance in the car door, with the top of the motor outward. They took hold of the motor car, and while they were thus standing on the ground, holding it, the men on the inside, including the conductor, gave the car a shove from the inside and pushed it out, and as they did so it overbalanced, the conductor and the men on the inside of the car, without any warning, let go, and the motor car fell, with its top outwards, upon the plaintiff and the men standing upon the ground with such force that they were unable to hold it. As it fell it struck the plaintiff, and the conductor, as it was falling, called "Look out!" But it was too late, and the plaintiff was hit by the motor car, and thereby seriously injured. The conductor was master of his train and train crew, and had unloaded six other motor cars the same day in substantially the same manner without mishap. The first contention of the defendant is that there was no evidence tending to show any actionable negligence on its part. The evidence tended to show that the work, in which the plaintiff was engaged when injured, involved, by reason of the necessity for haste, a railroad hazard; and, if the conductor was authorized to, and rightfully did, take control of the unloading of the motor, and was guilty of actionable negligence in the premises, such negligence would be imputable to the defendant. In this connection the trial court, at the request of the defendant, instructed the jury as follows: "The fact, even if it be a fact, that the conductor was in a hurry to reach Rochester ahead of the passenger train would not be evidence of negligence; that is to say, it would not in itself be evidence of negligence. That fact may have a bearing in determining whether the defendant would be liable for the negligence of the conductor if he was negligent. by the conductor in unloading the motor car and the manner in which it was attempted to pursue that method. We are of the opinion that there was evidence to take the case to the jury on that question. A more serious question is whether there was evidence tending to show that the conductor had authority to take control of the unloading of the motor from his train, of which he was master, in view of the orders given to the plaintiff by the roadmaster. The order to the plaintiff to go to Douglass and unload the car cannot reasonably be construed as authorizing and requiring him to enter upon a railway car, which was a part of a live train, waiting only for the unloading of the motor, and hold up the train until he could carry out his instructions in his own way and in his own time, contrary to the orders of the conductor. On the other hand, if the taking charge of the unloading of the motor by the conductor was reasonably necessary, of which he was prima facie the judge, for the orderly and timely running of his train, he had the right to so do, and in so doing he would be the representative of the defendant. It is the further contention of the defend ant that the plaintiff assumed the risks, and was also guilty of contributory negligence as dence leads us to the conclusion that each of a matter of law. A consideration of the evithese questions was one of fact, to be determined by the jury, and not by the judge. Judgment affirmed. STATE ex rel. SENSKE v. COMMON COUNCIL OF CITY OF WASECA et al. (Supreme Court of Minnesota. Nov. 10, 1911.) (Syllabus by the Court.) 1. MANDAMUS (§ 160*)-ALTERNATIVE WRIT FORM. The alternative writ of mandamus herein did not state or recite the facts alleged in the petition: but the writ recited that it appears to the court by the petition of the relator that all matters alleged and set forth in the petition, which is hereto attached, are true. Held, that the writ was valid. Cent. Dig. §§ 326-335; Dec. Dig. § 160.*] [Ed. Note.-For other cases, see Mandamus, 2. ELECTIONS (§ 305*)-CONTESTS-DISMISSAL. A party instituting an election contest by appeal may dismiss it, in a case where the answer of the contestee claims no affirmative relief, but is substantially a general denial. [Ed. Note.-For other cases, see Elections, Dec. Dig. § 305.*] 3. MANDAMUS (8 178*) - PROCEEDINGS - MOTION FOR JUDGMENT. The here important question, then, is whether there was any evidence tending to show that the conductor did so take charge of the unloading, and whether he was negligent. The only alleged negligence submitted to the jury related to the method adopted Dec. Dig. § 178.*] an alternative writ of mandamus may be made A motion for judgment upon the return to at the place the writ is made returnable. [Ed. Note. For other cases, see Mandamus, Appeal from District Court, Waseca Coun-I was insufficient; hence the court erred in ty; Arthur B. Childress, Judge. Application by the State, on the relation of August Senske, for writ of mandamus to the Common Council of the City of Waseca and others. From a judgment awarding the writ, the defendants appeal. Affirmed. P. McGovern, E. B. Collester, F. B. Andrews, and John Moonan, for appellants. H. L. Schmitt and F. W. Senn, for respondent. START, C. J. This is an appeal from a judgment of the district court of the county of Waseca, awarding a writ of mandamus directing the common council of the city of Waseca to fix, pursuant to the city charter, the time, place, and manner in which a vote for the office of alderman shall be determined. The facts are these: The relator, August Senske, and the appellant, George Goodspeed, were candidates for alderman from the Second ward of the city at an election held April 4, 1911. Each received 84 votes, and the city council, as a canvassing board, on April 6th determined the result of the election to be a tie between the candidates. On April 11th Senske instituted a contest, and on May 12th he served notice of dismissal of the contest in the manner provided by the statute. R. L. 1905, § 4195. Thereafter Senske duly requested the common council to fix a time, place, and manner for the determination of the tie. The request was denied, and the judge of the district court, upon Senske's petition, issued an alternative writ of mandamus, returnable at his chambers in the city of Faribault, requiring the council to comply with the request or show cause why they had not done so on the return day of the writ, July 12, 1911, which was by consent changed to July 13th. On the return day the parties appeared, and the appellants herein moved to quash the writ. The motion was denied, and the court made its further order that the appellants show cause by answer before the court at its chambers in the city of Faribault on August 1st, at 11 o'clock a. m. The appellants appeared pursuant to the order, and filed their answer purporting to show cause. Thereupon the relator moved for judgment that the writ issue, notwithstanding the an swer. The appellants objected to the hearing of the motion for the reasons: "That no notice of any motion or ground for it has ever been made, served, or given, as required by law or the practice of this court. That this action is pending in the district court of Waseca county, and that there is no warrant of law for the determination of any such motion as the one made by the relator at this time or at this place." The objections were overruled, and the motion for judgment heard and granted. [1] 1. The first alleged error here urged by The court denying the motion to quash it. The statute (R. L. 1905, § 4558) provides that the alternative writ "shall state concisely the facts showing the obligation of the defendant to perform the act." No question is made as to the sufficiency of the petition in this respect, but such facts were not stated or recited in the body of the writ. The petition, however, was attached to the writ, which recited that "it manifestly appears to the court by the petition of August Senske that all matters alleged and set forth in said petition, which is hereto attached, are true." directed that a copy of the order allowing the writ, with a copy of the writ and petition, be delivered to each of the appellants on or before July 10, 1911. The appellants claim that the petition was no part of the writ, and that the case falls within the rule that exhibits attached to a pleading do not serve the purpose, as a matter of pleading, of an allegation of fact, unless the pleading is so framed as to show an intention to make them such. Conceding, for the purposes of this appeal, that this rule of pleading is applicable to the statements and recitals of fact in an alternative writ of mandamus-a doubtful concession-it is reasonably clear that the writ in this case was so framed as to show an intention to make the petition a part thereof. The original verified petition was attached to the writ, and it was so stated therein; and, further, it thereby appeared to the court that all matters alleged and set We hold that the forth therein were true. writ was sufficient, and that the motion to quash was correctly denied. The an [2] 2. The second claim made is that relator's attempt to dismiss his contest was unavailing, and that it was still pending on appeal when the writ was issued. This is based upon the assumption that Goodspeed's answer to relator's contest set up affirmative matter, which, if proven, would entitle him to affirmative relief; hence the relator could not dismiss without his consent. swer to relator's contest denied each and all the grounds of contest specified in relator's notice of appeal, and gave notice that the contestee desired to offer testimony in such contest on the point that illegal votes were cast and counted for the contestant which affected the result, but for which the contestee would have been elected. The answer did not demand any affirmative relief, or suggest a cross-contest, or indicate that it was the purpose of the contestee to maintain a contest on his own behalf, independent of that of the contestant. In short, the answer was directed to the defeat of the relator's contest. We are of the opinion that the relator had the right to, and did, dismiss his contest. [31 3. The last contention of the appellants, meriting consideration, is that the trial court Judgment that the peremptory writ issue at county. On June 19, 1909, plaintiff Smith the time and place the motion was made and was the owner of one share of stock in heard. If the answer had tendered material the association. On that date he assigned issues of fact triable by a jury, it may be and delivered his certificate to plaintiff Healconceded that the appellants would have ey, who demanded of defendant that it transbeen entitled to have such issues tried in fer the stock to him on the books of the asthe county where they resided. This, how-sociation, which defendant refused to do. ever, is not such a case; for the issues of Thereupon plaintiffs brought this action to fact tendered by the appellants' answer were compel defendant to transfer said share of not relevant to the question whether the stock on its books to plaintiff Healey, and to peremptory writ should issue. The relator's recognize Healey as a stockholder. The motion for judgment notwithstanding the ap- case was tried and resulted in a decision in pellants' return and answer raised the ques- plaintiff's favor, granting the relief asked. tion of the legal sufficiency of the facts there- This appeal is from an order denying dein alleged, and was correctly heard and de- fendant's motion for a new trial. termined at the place where the return to the writ was returnable, and where the appellants were required to show cause. Judgment affirmed. HEALEY et al. v. STEELE CENTER [1] The ultimate question before us is whether the conclusions of law are justified by the findings of fact. The precise question is: Do the findings show that defendant was a corporation, either de jure or de facto, organized under chapter 29, Laws 1870? This law is entitled "An act in relation to the formation of co-operative associations," and contained this provision: "No (Supreme Court of Minnesota. Oct. 27, 1911.) person shall be allowed to become a share (Syllabus by the Court.) 1. CORPORATIONS (§ 28*)-ORGANIZATION-DE [Ed. Note.-For other cases, see Corporations, Dec. Dig. § 28.*] 2. CORPORATIONS (§ 25*)-POWERS-STATUTO BY PROVISIONS. Laws 1909, c. 298 (Rev. Laws Supp. 1909, $2859), changed defendant from a de facto corporation to a de jure corporation; but Laws 1870. c. 29, under which it was organized, still controls as to the powers of defendant and of its officers, directors, or managers, and as to the rights of stockholders in such corporation. [Ed. Note.-For other cases, see Corporations, Dec. Dig. 25.*] 3. CORPORATIONS (§ 74*)-STOCK-TRANSFERS -STATUTORY PROVISIONS. holder in such association except by the consent of the managers of the same." If defendant was organized under this law plaintiffs were not entitled to the transfer of the stock on defendant's books, as the managers refused their consent to plaintiff Healey's becoming a stockholder. If, however, defendant was a corporation de jure or de facto under some other law of the state, the conclusions of the trial court were correct. The problem is to be solved by looking to the findings to discover what was done in organizing the association and in conducting its business, and by looking to the laws in force at the time the association was formed. Prior to February 18, 1892, residents of Somerset, in Steele county, more than seven in number and of lawful age, associated themselves together under the name of "the Steele Center Creamery Association" for the purpose of manufacturing butter and cheese from whole milk at actual cost at a plant to be located in the town of Somerset, and adopted articles of agreement and by-laws. The articles of agreement begin in this way: "We, whose names are hereunto subscribed and whose residences are within the county of Steele in the state of Minnesota, do hereby associate ourselves together as a co-operaAppeal from District Court, Steele Coun- tive association under the laws of the state ty; Thomas S. Buckham, Judge. The provision in said chapter 29, Laws 1870, that "no person shall be allowed to become a shareholder in such association except by the consent of the managers of the same," is valid, and applies to defendant. Such provision is not repealed by R. L. 1905, § 2863. [Ed. Note.-For other cases, see Corporations, Dec. Dig. § 74.*] of Minnesota, to which end we have adoptAction by James H. Healey and others ed the following constitution." Then folagainst the Steele Center Creamery Associa-lowed the "articles." Article 1 gives the tion. From an order denying a new trial after a decision in favor of plaintiffs, defendant appeals. Reversed, with directions. name and place of business. Article 2 specifies the object of the association; article 3, the officers, the time of their election, and Leach & Reigard, for appellant. J. A. & their term of office. It is provided that the A. W. Sawyer, for respondents. BUNN, J. Defendant is a co-operative association organized in 1892 located in Steele officers shall be a president, vice president, secretary and treasurer, and three trustees. Article 4 defines the duties of the officers, and provides for the furnishing of milk by members, the creation of a sinking fund, the [ share to each member. Plaintiff Healey payment of running expenses, and the di- furnished milk to the creamery until shortly vision of the net receipts among the mem- before the erection of the new plant, when bers who have furnished the milk. The he withdrew from the association, ceased to board of directors were authorized to bor- be a member thereof, and did not furnish row $3,000 to be used in erecting and fur- milk until in June, 1909, when he commenced nishing a creamery building, the amount bor- again, and has ever since continued, to derowed to be paid out of the sinking fund. liver milk, receiving as pay his pro rata Article 5 provided that the members of the share of the receipts for butter after deductassociation should furnish all the milk from ing the expenses and the amount specified the number of cows subscribed by each, and for the sinking fund. Plaintiff Smith had that patrons not members might furnish furnished milk to the association and conmilk by agreement with the board of trus-tributed to its sinking fund at all times pritees. The association was to receive all milk or to March 16, 1905. On that date defendso furnished, manufacture it into cheese or ant issued to him a share of stock. He conbutter, and sell the product. Of the money tinued to deliver milk until June 19, 1909, so received, after deducting such a number when he sold and assigned his share of stock of cents per hundred pounds of milk as to plaintiff Healey, who has ever since conshould be agreed upon by the association in tinued to deliver the milk from all his cows its by-laws or otherwise for the sinking to the creamery. Healey purchased the cerfund, and deducting expenses, the remainder tificate with full notice that defendant would was to be distributed as provided by article not admit him as a shareholder. 4. Article 6 provided that each member should have one vote, and authorized the admission of new members and the withdrawal of members, as provided by the by-laws. By-laws were adopted. The "articles of agreement" were filed for record in the office of the town clerk of the town of Somerset February 18, 1892, but were never in fact recorded. They remained in the office of the town clerk until 1896, when they were taken from such office by the secretary of the association and never returned. After executing and filing these articles of agreement, the persons forming the association borrowed $3,000, and with that sum erected a creamery building and commenced to manufacture butter. Ever since such time the business has been carried on in good faith by the association at the same place, through officers and a board of directors elected from time to time by the stockholders at their meetings. On the formation of the association, certificates of stock, so called, were issued to its members, one share of stock being issued for each cow whose milk was furnished. No capital stock of the association was ever subscribed for or paid into the treasury, except as those who furnished milk, nonmembers as well as shareholders, contributed to the sinking fund by the setting aside of 5 cents for each 100 pounds of milk furnished. The nonmembers who thus contributed to the sinking fund never received any return therefor. Both plaintiffs were original members of the association, furnished milk to its creamery, and contributed to the sinking fund, which was used in paying for the creamery plant. Prior to 1905, out of the money in the sinking fund, the defendant erected and furnished a new creamery, and has ever since carried on its business in said creamery, which is worth $6,000 and is the only property of such association. In 1905 defendant took up its certificates of stock, and issued in In refusing to transfer the stock the directors of defendant acted in good faith, claiming and believing that they had a right to do so under the laws of the state of Minnesota regulating the association. What were the laws of the state of Minnesota under which such an association might have been incorporated? We have seen that the title of chapter 29, Laws 1870, is "An act in relation to the formation of co-operative associations." We may state here that there was no other law that purported to relate to "co-operative associations." Section 1 of the act provides that "seven or more persons of lawful age, inhabitants of this state, may by written articles of agreement, associate themselves together for the purpose of carrying on any lawful mechanical, manufacturing, or agricultural business within this state," and that, when these articles shall have been executed and recorded “in the office of the clerk of the city or town in which the business is to be carried on," such association shall become a corporation. Section 2 provides that the object for which the association is established, and the place within which its business is carried on, shall be distinctly set forth in the articles of agreement. Section 3 provides that the business shall be conducted by a president, a board of not less than three directors, and a treasurer, who shall be styled a board of managers, and that the association shall have such other officers as shall be prescribed in its by-laws. Section 4 authorizes the association to make its own by-laws and directs that a copy be filed in the clerk's office. Section 5 provides that the amount of capital stock shall be fixed and limited in the articles, subject to change by vote of the stockholders. Section 6 declares it the duty of the board of managers to prepare and file in the office of the town clerk a statement showing the condition of the as |