Volume 234 — Minnesota Reports

<bold>Vendor and purchaser — validity of contract — acceptance in</bold> <bold>terms of offer</bold>. <block_quote> 1. An acceptance of an offer to sell real estate must be in terms of the offer in order to create a contract. Since the acceptance in the instant case was not in the terms of the offer, no contract was consummated between the parties, and an action for specific performance does not lie.</block_quote> <bold>Specific performance — oral contract to convey realty —</bold> <bold>part performance pursuant to existing contract</bold>. <block_quote> 2. The part performance which will make an oral contract to convey real property specifically enforceable must be done in reliance upon and in pursuance of an existing contract.</block_quote>

<bold>Attorney and client — lien of attorney — time when lien</bold> <bold>attaches — proceedings for giving notice</bold>. <block_quote> 1. Where an attorney for a property owner intervenes in a mechanic's lien action and files a notice of attorney's lien against his client's interest in real property involved therein, the attorney's lien attaches from the time of its filing — not from the commencement of the mechanic's lien action — as against a mortgagee of the property joined in such action, who without notice has recorded his mortgage subsequent to the commencement of the mechanic's lien action but prior to the filing of the notice of attorney's lien. The filing of a notice of attorney's lien pursuant to M.S.A. <cross_reference>481.13</cross_reference> is the only effective method of giving third parties constructive notice thereof.</block_quote> <bold>Estoppel — grounds — acting to detriment in reliance on</bold> <bold>representations</bold>. <block_quote> 2. A party asserting an estoppel must show that he acted to his detriment in reliance on an express or implied representation of the party against whom the estoppel is claimed.</block_quote> <bold>Mortgage — lien and priority — future advances</bold>. <block_quote> 3. Where an encumbrance attaches to realty after the recording of a mortgage to secure future advances but before the advances are made, the priority of the advances is dependent on whether they were obligatory or optional on the part of the mortgagee.</block_quote>

<bold>Appeal and error — assignments of error — requisites of</bold> <bold>specification — argument in brief</bold>. <block_quote> 1. An assignment of error not argued in the brief, except by mere repetition of the words of the assignment, is deemed abandoned.</block_quote> <bold>Same — review — findings of fact — weight and sufficiency</bold>. <block_quote> 2. Where an action is tried by a court without a jury, its findings of fact are entitled to the same weight as the verdict of a jury and will not be reversed on appeal unless they are manifestly and palpably contrary to the evidence.</block_quote> <bold>Same — same — second verdict — setting aside</bold>. <block_quote> 3. Where a verdict is a second or succeeding verdict and is in accordance with the prior verdict, the reviewing courts are less inclined to set it aside than if it were a first verdict.</block_quote>

<bold>Automobile — wilful and wanton negligence of driver —</bold> <bold>evidence</bold>. <block_quote> Jury's finding of wilful and wanton negligence on part of minor defendant was justified where evidence disclosed that minor was driving a stolen automobile at a high and dangerous rate of speed at night while being pursued by state highway patrolmen, and that, as he came to a left curve in the highway at the crest of a hill, the automobile went off the pavement and onto the right shoulder until it was about two-thirds of the way down the hill, then swung over onto the wrong side of the pavement, straightened out, and collided head on with plaintiff's automobile, which was approaching on its proper side of the highway.</block_quote>

<bold>Divorce — temporary support money — award pendente lite —</bold> <bold>discretion of court</bold>. <block_quote> 1. Where property possessed by wife in divorce proceedings is not sufficient for her support while action is pending, or where it is not readily available for immediate needs, court in its discretion may make an order requiring husband to pay temporary support money <italic>pendente lite</italic>.</block_quote> <bold>Same — right to possession of property — jurisdiction to</bold> <bold>determine pendente lite</bold>. <block_quote> 2. Voluntary litigation of right to possession of certain real property, in proceedings relative to temporary alimony in divorce action, confers jurisdiction upon court to determine this issue.</block_quote> <bold>Same — right to possession of homestead — jurisdiction to</bold> <bold>determine pendente lite</bold>. <block_quote> 3. Under M.S.A. <cross_reference>518.16</cross_reference>, which provides that in divorce actions the court, during the pendency of the action, may make "such temporary orders relative to the persons or <italic>property</italic> of the parties, as shall be deemed necessary and proper" (italics supplied), court may properly make an order relative to right of possession of homestead property of the parties <italic>pendente lite</italic>.</block_quote> <bold>Same — removal of party from homestead — order pendente lite</bold> <bold>— power of court</bold>. <block_quote> 4. Under § <cross_reference>518.16</cross_reference>, court, <italic>pendente lite</italic>, may order husband, party to a divorce action, to remove himself from homestead of parties when his presence there might endanger health or security of wife.</block_quote>

<bold>Negligence — injury from use of saw rig without guard —</bold> <bold>factory act inapplicable</bold>. <block_quote> Defendant, the owner of a lumberyard, permitted a customer to use a saw rig owned by defendant to cut curved rafters out of lumber he had purchased. The work was done by the customer's employes, without any supervision or direction by defendant. Because of the absence of a guard to the saw, a piece of board was thrown off by the saw, striking and injuring plaintiff, an employe of the customer. <italic>Held</italic> that the court did not err in granting defendant's motion for judgment notwithstanding the verdict on the ground that M.S.A. c. 182, the Minnesota factory act, did not apply to the situation.</block_quote>

<bold>Appeal and error — law of case on appeal — instructions</bold> <bold>unobjected to</bold>. <block_quote> 1. Instructions unobjected to become the law of the case and, for the purposes of an appeal, must be taken as the law of the case, unless the record shows conclusively that the party recovering is not entitled to recover under any view of the law.</block_quote> <bold>Frauds, statute of — contract for one year's services — date</bold> <bold>of commencement</bold>. <block_quote> 2. A contract for one year's services, commencing on the date of the contract, is not within the statute of frauds.</block_quote> <bold>Same — same — same</bold>. <block_quote> 3. An oral contract for the performance of services for a term of one year, to begin in the future, is within the statute of frauds.</block_quote> <bold>Same — same — reaffirmation of contract on date of</bold> <bold>commencement of services</bold>. <block_quote> 4. Where the terms of a contract are reaffirmed on the date when the services are to begin and extend for one year from that date, the contract is not within the statute of frauds.</block_quote> <bold>Same — effect of statute — oral contracts within statute</bold>. <block_quote> 5. Oral contracts which are within M.S.A. <cross_reference>513.01</cross_reference> are not void in the strict sense that no contract ever comes into being, but are unenforceable at the option of the party against whom enforcement is sought.</block_quote> <bold>Same — pleading — raising statute by general denial</bold>. <block_quote> 6. The statute of frauds may be raised by a general denial.</block_quote> <bold>Same — defense of statute — party to be charged — waiver</bold>. <block_quote> 7. The defense is personal to the party to be charged and his privies, and it may be waived.</block_quote><page_number>Page 309</page_number> <bold>Same — pleading — demurrer or pleading statute as defense —</bold> <bold>waiver</bold>. <block_quote> 8. Where it appears from the face of the complaint that the contract is within the statute of frauds, defendant must either demur to the complaint or assert the defense by general denial or by specifically pleading the statute, and in such case there is a waiver if he fails to object to the admission of oral evidence to prove the contract.</block_quote> <bold>Same — contract within statute — objections — time of</bold> <bold>making</bold>. <block_quote> 9. It is too late to raise the objection after a verdict by a jury or on a motion for a new trial.</block_quote> <bold>Appeal and error — review — necessity of objection as ground</bold> <bold>for review — objection to contract within statute of frauds</bold>. <block_quote> 10. An objection that the contract was within the statute may not be raised for the first time on appeal.</block_quote>

<bold>Divorce — revision of decree as to alimony — proceedings on</bold> <bold>petition</bold>. <block_quote> 1. A petition for revision of a divorce decree with respect to the amount of alimony awarded should be entertained with great caution and revision granted only upon clear proof of facts showing that the changed circumstances of the parties render the proposed modification equitable.</block_quote> <bold>Same — same — same</bold>. <block_quote> 2. A court should be very slow, under any circumstances, to revise a former decree, and a petition for revision of an alimony award should not be granted unless it appears that the changed circumstances of the parties render the modification necessary.</block_quote> <bold>Same — same — discretion of trial court — review on appeal</bold>. <block_quote> 3. Such petitions are addressed to the sound judicial discretion of the trial court, and on appeal this court will not reverse except for abuse of such discretion.</block_quote><page_number>Page 403</page_number> <bold>Same — same — award stipulated by parties — factors for</bold> <bold>consideration</bold>. <block_quote> 4. Although a court has the power to revise even those decrees which are founded upon an award stipulated by the parties, consideration of that fact should make a court more reluctant to order a revision than it would otherwise be. Our courts subject stipulations of this kind to careful and searching scrutiny, to the end that they may not be conducive to the procurement of divorce and to assure that they are likewise reasonably fair and just, but there is no presumption that an award made in accordance with such a stipulation is identical with the award which the court would have made in the absence of the stipulation.</block_quote> <bold>Same — same — factors for consideration</bold>. <block_quote> 5. If at the time a petition to revise an alimony award is presented the wife is receiving alimony which is adequate by standards governing an original award, then there is no occasion to revise the alimony merely because it has less purchasing power than it had when originally awarded.</block_quote> <bold>Same — same — same</bold>. <block_quote> 6. Where the evidence clearly demonstrates that changes in the circumstances of a former husband and wife are due principally to the husband's thrift and industry on the one hand and to the wife's mismanagement and gross extravagance on the other, the court will not attempt to equalize the circumstances of the parties.</block_quote> <bold>Same — same — same</bold>. <block_quote> 7. Since a court's discretion in fixing the amount of alimony to be awarded in any case must be guided in part by concern for the future welfare of the parties involved, it is proper for a court to consider the fact that a husband in his declining years may need to accumulate a reserve in order to continue alimony payments to a wife who has demonstrated her inability to save against the day when her alimony may be reduced or eliminated.</block_quote> <bold>Continuance — granting — discretion of trial court</bold>. <block_quote> 8. The granting of a continuance is a matter lying in the discretion of the trial court, and, where a party moves for a continuance in order to secure evidence which in the exercise of due diligence she might have obtained in time for trial, the court may properly deny the motion.</block_quote><page_number>Page 404</page_number>

<bold>Municipal corporation — contract — bids — items not capable</bold> <bold>of exact specifications — lowest responsible bid —</bold> <bold>discretion of municipality</bold>. <block_quote> 1. Where bids are received on items of equipment which are not capable of precise or exact specifications, a municipality may exercise a reasonable discretion in determining who is the lowest responsible bidder and, in so doing, may consider, in addition to the bid price, the quality, suitability, and adaptability of the article to be purchased for the use for which it is intended.</block_quote> <bold>Same — same — municipal power plant — bids — definiteness</bold> <bold>of specifications</bold>. <block_quote> 2. The court's finding that the plans and specifications here involved were not so vague and indefinite as to stifle competition or so restrictive as to preclude competitive bidding is sustained by the evidence.</block_quote> <bold>Same — same — bids — statutes — contracts to which</bold> <bold>inapplicable</bold>. <block_quote> 3. M.S.A. <cross_reference>471.34</cross_reference> to <cross_reference>471.37</cross_reference> do not apply to contracts for work or services or to contracts for the purchase of supplies and equipment which include also the furnishing of work and labor in connection with the installation thereof.</block_quote> <bold>Same — revenue certificates payable from revenue of electric</bold> <bold>plant — obligation of village — construction of authorizing</bold> <bold>resolution</bold>. <block_quote> 4. Revenue certificates to be issued pursuant to a resolution adopted by a village payable solely out of the revenues of an electric plant do not become a general obligation of the village by including agreements on the part of the village that it will perform acts intended for the protection of the certificate holder and which thereafter provide that, in the event of a default in the performance of such agreements, the holders of 20 percent or more in principal amount of outstanding certificates shall be authorized to bring any proper action or proceeding on behalf of all holders of certificates and shall have all rights granted by the state of Minnesota for the enforcement of all obligations created hereunder.</block_quote><page_number>Page 420</page_number>

<bold>Quo warranto — proceedings on petition of private individual</bold> <bold>with consent of attorney general — leave of court</bold>. <block_quote> 1. Where the issuance of a writ of quo warranto is sought by a private individual with the consent of the attorney general, such individual must petition the court for leave to file an information <italic>for</italic> a writ of quo warranto.</block_quote> <bold>Same — same — same</bold>. <block_quote> 2. The granting or withholding of leave to file an information <italic>for</italic> a writ of quo warranto at the instance of a private individual, with or without the consent of the attorney general, rests in the sound discretion of the court.</block_quote> <bold>Same — same — operation and effect of issuance of writ</bold> <bold>without petition for leave of court</bold>. <block_quote> 3. When the supreme court permits an information <italic>for</italic> a writ of quo warranto to be filed <italic>and has issued the</italic> <italic>writ</italic>, the court is deemed to have exercised its discretionary power favorably for the relator, and it is immaterial that relator failed to petition the court for leave to file the information upon which the writ was issued.</block_quote> <bold>Same — same — to contest annexation proceeding by</bold> <bold>municipality</bold>. <block_quote> 4. A private person, with the consent of the attorney general and with leave of the supreme court, may file an information <italic>for</italic> a writ of quo warranto to contest an <italic>annexation</italic> proceeding by a municipal corporation, and, if successful, is entitled to the issuance of a writ of ouster with respect to the territory sought to be annexed.</block_quote><page_number>Page 532</page_number> <bold>Same — proceedings — objections to parties — time and manner</bold> <bold>of taking</bold>. <block_quote> 5. In the absence of statutory provisions or rules of practice to the contrary, objections to parties in quo warranto proceedings should be taken at the time and in the same manner as prescribed for such objections in civil proceedings generally.</block_quote> <bold>Parties — defect of parties</bold>. <block_quote> 6. A defect of parties, pursuant to M.S.A. <cross_reference>544.03</cross_reference>, subd. 1(4), means only the failure to join those who should have been included and not the joinder of improper parties.</block_quote> <bold>Quo warranto — proceedings — to challenge annexation by</bold> <bold>village — parties defendant</bold>. <block_quote> 7. Quo warranto proceedings instituted to challenge an annexation by a village must be brought against the municipal corporation and its officers and council members — and not against the signers of the petition for annexation.</block_quote> <bold>Same — same — correction of misjoinder of parties defendant</bold>. <block_quote> 8. The misjoinder of defendants in a quo warranto proceeding is an irregularity which may be corrected at any time before or after judgment of ouster is entered by striking out the name of the party improperly joined.</block_quote> <bold>Same — remedy not available — absence of actual usurpation —</bold> <bold>to test validity of pending petition for annexation by</bold> <bold>village</bold>. <block_quote> 9. Until an actual usurpation has occurred, the remedy of quo warranto has no application and may not therefore be used to question the validity of a pending petition for annexation which has not been acted upon by the village council.</block_quote> <bold>Municipal corporation — annexation of territory — nature of</bold> <bold>territory which may be annexed</bold>. <block_quote> 10. Pursuant to § <cross_reference>412.041</cross_reference>, subd. 1, territory to be added to an existing village by annexation is conditioned as properly to be subjected to village government only if it lies in such close proximity to the village as to both abut thereon and as to be suburban in its character, and to be so limited in area and to have such a natural connection, as well as a unity or community of interests, with the village that the entire<page_number>Page 533</page_number> area, taken as a whole, will naturally and reasonably be adaptable to the maintenance of village government whereby, in addition to other municipal functions, there may be a common and feasible provision for, and enjoyment of, the benefits of the usual municipal conveniences such as water, sanitation, gas, electricity, police and fire protection, and similar services.</block_quote> <bold>Same — same — exercise of power by municipality</bold>. <block_quote> 11. As long as the legislative function of annexation is exercised by the village within the scope of its delegated powers, and in a reasonable manner, as distinguished from one that is arbitrary or unreasonable, this court will not interfere, even though the wisdom of the annexation may be subject to question as a matter of policy.</block_quote> <bold>Same — same — nature of territory which may be annexed</bold>. <block_quote> 12. In providing by § <cross_reference>412.041</cross_reference>, subd. 1, that territory to be annexed to a village must abut upon the village, the legislature intended that the abutting should not only be to such an extent, but also of such a <italic>character</italic>, that it will so condition the territory as properly to subject it to the village government.</block_quote>