Volume 233 — Minnesota Reports

<bold>Bills and notes — delivery of note to escrow holder by</bold> <bold>endorser — fraudulent possession and defective title</bold>. <block_quote> 1-2. Evidence that defendant, endorser of a promissory note, in presence of plaintiff delivered it to escrow holder with specific instructions as to the conditions attached to its delivery to plaintiff, and that plaintiff, in violation thereof, obtained its delivery from escrow holder as partial payment on a transaction drastically different from that on which defendant had instructed the note's delivery, <italic>held</italic> sufficient to sustain jury's finding that plaintiff's possession of note was fraudulent and its title thereto defective.</block_quote> <block_quote> <bold>Same — same — same — waiver of prior rights —</bold> <bold>ratification</bold>.</block_quote> 3. Ratification sufficient to support a waiver of prior rights must<page_number>Page 193</page_number> be made with full knowledge of all material facts. Advices to defendant that a few changes had been made in transaction<italic>held</italic> not sufficient to support finding that defendant had knowledge of drastic changes therein and had consented to and ratified the same. <bold>Contract — fraud and misrepresentation — agreement between</bold> <bold>payee and makers of note — want of disclosure as to</bold> <bold>endorser</bold>. <block_quote> 4. Where evidence disclosed that oral agreement between plaintiff and makers of note was reached in presence of defendant whereby plaintiff was to sell and makers of note were to purchase a certain grocery business for $13,000, trial court's instruction that if purchasers "were making misrepresentations about this business, and the plaintiff through its agent Levine knew that they were making those representations, * * * it would be for the Jury to say whether the representations thus made were to be charged against the plaintiff, or not," <italic>held</italic> not erroneous, since plaintiff's silence while defendant was being misled would constitute fraud under the circumstances here present.</block_quote>

<bold>Taxation — inheritance tax — "full and true value" construed</bold>. <block_quote> 1. The words "full and true value," as used in M.S.A. <cross_reference>291.23</cross_reference>, should not be construed to mean "market value" in cases where no standardized market for the particular kind and quantity of property being valued is shown to exist, but they should instead be construed to mean a fair value determined by reference to all relevant facts in evidence.</block_quote> <bold>Same — same — value of corporate stock — evidence</bold>. <block_quote> 2. Considering all relevant facts in evidence bearing on the value of a large block of corporate stock, <italic>held</italic> that the trial court's finding of value was supported by the evidence.</block_quote>

<bold>Automobile — right of way at intersection — statutory</bold> <bold>provisions construed</bold>. <block_quote> 1. The provisions of M.S.A. <cross_reference>169.20</cross_reference> should be construed to mean that where two automobiles approach an intersection so nearly at the same time that there would be imminent hazard of collision if both continued the same course at the same speed the driver on the right has the right of way, unless he has forfeited it by traveling at an unlawful speed.</block_quote> <bold>Same — same — contributory negligence of motorist failing to</bold> <bold>yield right of way</bold>. <block_quote> 2. Thus, where a plaintiff's own testimony discloses that he entered an intersection only a split second ahead of the driver on his right and there was no evidence that the other driver was traveling at an excessive speed, he is contributorily negligent as a matter of law in failing to yield the right of way.</block_quote> <bold>Appeal and error — review — rulings on evidence —</bold> <bold>instructions — prejudicial effect</bold>. <block_quote> 3. Where a plaintiff's own testimony discloses that a verdict against him was correct as a matter of law, alleged errors committed by the trial court in ruling on other evidence and in instructions to the jury are nonprejudicial.</block_quote>

<bold>Taxation — rural real property — classification and</bold> <bold>assessment</bold>. <block_quote> 1. Petitioner's property, consisting of an unplatted 40-acre tract 23 miles distant from Minneapolis near Lake Minnetonka, which is used partially for residential purposes by petitioner, an attorney practicing in Minneapolis, but is in further use for the purpose of raising garden produce, chickens, trees, and pasturage for sheep, and in the past had been used on a more extensive scale for the raising of cattle, sheep, hogs, and chickens, which activity, in part at least, petitioner contemplates resuming, <italic>held</italic> rural in character and devoted or adaptable to rural but not necessarily agricultural use, and should have been thus classified under M.S.A. <cross_reference>273.13</cross_reference>, subd. 6, class 3b, and subd. 4, class 3.</block_quote> <bold>Same — same — same</bold>. <block_quote> 2. Where at time of assessment petitioner had substantially curtailed his agricultural activity in the use of his property, although property was rural in character and adaptable to rural though not necessarily agricultural use, such property was properly classified as nonagricultural and hence not within the provisions applicable to agricultural lands for school maintenance taxation purposes under § <cross_reference>127.05</cross_reference>, subd. 1.</block_quote>

<bold>Automobile — contributory negligence of driver — conflict in</bold> <bold>evidence</bold>. <block_quote> 1. Plaintiff should not be held contributorily negligent as a matter of law where the evidence of whether he committed a negligent act is conflicting or where there is a lack of evidence which would compel a finding that such negligence was the proximate cause of his injury.</block_quote> <bold>Same — unlawful speed in operation — forfeiture of right of</bold> <bold>way — questions for jury</bold>. <block_quote> 2. Where there is credible evidence that a plaintiff was traveling at an unlawful speed, that issue should be submitted to the jury with instructions as to the applicable speed limit and with instructions that a driver forfeits his right of way by traveling at an unlawful speed.</block_quote>

<bold>Court — municipal court (Minneapolis) — jurisdiction and</bold> <bold>extent thereof — actions of forcible entry and unlawful</bold> <bold>detainer</bold>. <block_quote> 1. Although the Minneapolis municipal court has jurisdiction over actions of forcible entry and unlawful detainer, <italic>whether involving title to real estate or not</italic>, such jurisdiction does not embrace the power to entertain or consider a defense which is insufficient per se and which can be asserted only with the aid of affirmative equitable relief.</block_quote> <bold>Unlawful detainer — nature of action — adjudication of</bold> <bold>title — determination of right to possession</bold>. <block_quote> 2. An unlawful detainer action merely determines the right to present possession and does not adjudicate the ultimate legal or equitable rights of ownership possessed by the parties.</block_quote>

<bold>Divorce — custody of child — welfare of child</bold>. <block_quote> 1. In determining custody, the overriding and primary consideration is the welfare of the child, and to this welfare the rights of the parents must yield.</block_quote> <bold>Same — same — conduct of mother</bold>. <block_quote> 2. Custodial preference for the mother ceases to be a custody factor where she, by irresponsible or reprehensible conduct, indicates that she cannot be depended upon to give her child a mother's devotion in a moral and reasonably wholesome atmosphere.</block_quote> <bold>Same — same — discretion of court</bold>. <block_quote> 3. The trial court is vested with a broad discretion, and, in the absence of a showing of arbitrary action in the award of custody, an appellate court will not interfere with the exercise of that discretion.</block_quote> <bold>Same — same — same</bold>. <block_quote> 4. It was for the trial court, in its sound discretion, to appraise the intelligence of the nine-year-old daughter and to determine what weight, if any, should be given to her wishes in determining her custody.</block_quote>