Volume 249 — Minnesota Reports

<bold>Brokers — duty to principal</bold>. <block_quote> 1. Agent for sale of realty is bound to exercise reasonable care, skill, and diligence in performing transaction entrusted to him and is responsible for any loss to his principal which results because of his failure to do so.</block_quote> <bold>Same — same — acceptance of note as earnest money</bold>. <block_quote> 2. Where earnest money has been paid to agent by purchaser of real estate under earnest money contract providing that such money shall be forfeited to vendor if purchaser fails to perform contract, and where such provision cannot be construed as a penalty, vendor is entitled to retain such earnest money as liquidated damages if purchaser fails to perform his part of agreement. This rule would not compel holding that where agent, without authority, accepts other than cash as earnest money on sale of realty, he thereby becomes liable to vendor to extent of earnest money receipted for but not paid in contract, in absence of evidence establishing that vendor was damaged thereby.</block_quote> <block_quote> In the absence of evidence sufficient to establish that plaintiff had changed position to his damage as a result of defendant's actions in accepting note instead of cash as earnest money, it would follow that plaintiff failed to establish his right to recover against defendant because thereof.</block_quote> <bold>Cases distinguished</bold>. <block_quote> 3. Lowrance v. Swaffield, <cross_reference>123 S.C. 331</cross_reference>, <cross_reference>116 S.E. 278</cross_reference>; Holloway v. Thiele, <cross_reference>116 Cal.App.2d 68</cross_reference>, <cross_reference>253 P.2d 131</cross_reference>; Paul v. Grimm, <cross_reference>165 Pa. 139</cross_reference>, <cross_reference>30 A. 721</cross_reference>, distinguished.</block_quote>

<bold>Negligence — care required of landowner — safety of premises</bold>. <block_quote> 1. Where the owner of the business property leases a part thereof and retains in his control other parts which are necessary to the leased portions thereof, he is subject to liability to his lessee or others upon the land with the consent of the lessee for bodily harm caused to them by permitting a dangerous condition upon that part of the premises retained in his control, if the lessor, by the exercise of reasonable care, would have discovered the condition and risk involved therein and could have made the condition safe. This rule, however, does not mean that the owner of the premises is a guarantor of the safety of the premises over which he retains control.</block_quote> <bold>Same — same — same</bold>. <block_quote> 2. The aforesaid duty of the owner retaining control of other parts of the leased property which are necessary to the leased portions thereof is of a continuing nature and requires reasonable inspection during such use.</block_quote> <bold>Same — same — same</bold>. <block_quote> 3. The relation of lessor and lessee, existing between defendant as owner of motel building including area and cabins as disclosed by the record in the instant case, presents a situation closely analogous to that of a possessor who permits visitors to enter for a purpose of his own.</block_quote><page_number>Page 60</page_number> <bold>Same — same — same</bold>. <block_quote> 4. A motel owner who rents cabins and space for trailer occupancy within his motel area, reserving control of facilities to be used in common by tenants and over the common approaches to be used by them in the enjoyment of the leased portions thereof, is obligated to use reasonable care to keep those approaches reasonably safe for the use of his tenants although dangerous conditions have arisen from natural causes. This obligation extends also to those who have a lawful occasion to visit the tenants for social or business purposes.</block_quote> <bold>Same — same — same — burden of proof</bold>. <block_quote> 5. The injured party herein was not charged with the burden of establishing the impracticability or impossibility of using other streets or sidewalks; the burden of proving the availability of a safer route of travel was on the challenger.</block_quote>

<bold>Finding lost goods — right of finder — envelope found in</bold> <bold>restricted area of bank</bold>. <block_quote> 1. Where an unmarked envelope containing money was found within an area of defendant bank set apart as the safety deposit vault, to which entrance was restricted to officers and employees of the bank and to those customers who paid rental for safety deposit boxes, who had registered, and who had obtained admittance by properly authenticated admittance tickets, the ordinary law of finders of lost or abandoned property does not apply.</block_quote> <bold>Same — same — same</bold>. <block_quote> 2. The only question before us, and the controlling one is whether the unmarked envelope with the money was found in a public or a private place. <italic>Held</italic> to have been found in a private place.</block_quote> <bold>Same — same — same</bold>. <block_quote> 3. Where an unmarked envelope containing money was lost in the safety vault department, in the manner disclosed by the record, it was deliverable to the defendant bank as agent or trustee for the true owner, who could upon the record be none other than one of its patrons, whether known or unknown. The defendant bank as a matter of law represents the owner and has the paramount custody.</block_quote>

<bold>Evidence — positive testimony — when disregarded</bold>. <block_quote> 1. The rule is well established in this state that the court or jury cannot disregard the positive testimony of an unimpeached witness unless and until its improbability or inconsistency furnishes a reasonable ground for so doing, and this improbability or inconsistency must appear from the facts and circumstances disclosed by the record in the case.</block_quote> <bold>Same — credibility — effect of mistaken observation of</bold> <bold>witness</bold>. <block_quote> 2. Credibility of a witness is not impeached merely by showing that on a subsequent occasion he was mistaken in his observation of a collateral fact which is immaterial and irrelevant to the controlling issue and which is so remote in time and circumstance as to have no reasonable bearing upon his veracity.</block_quote> <bold>Insurance — liability insurance — renewal — oral contract</bold>. <block_quote> 3. It is the general rule, in the absence of statutory or charter provisions to the contrary, that an oral contract to renew existing liability insurance for an additional term is valid even though the act of executing and delivering the written renewal policy remains to be performed.</block_quote> <bold>Same — same — same — same</bold>. <block_quote> 4. Where the parties by their oral agreement have clearly expressed an intent that a preexisting policy shall be renewed upon its expiration, the actual delivery of the renewal policy is not essential to the validity of the insurance contract.</block_quote> <bold>Same — same — cancellation — notice</bold>. <block_quote> 5. Although a notice of cancellation of an existing liability policy for failure to pay the premium need not be expressed in any particular form or language, it must, in explicit, unconditional, and unequivocal language, state that the policy is, or without further notice will stand, cancelled as of a certain day.</block_quote><page_number>Page 197</page_number> <bold>Same — same — same — same</bold>. <block_quote> 6. A notice which merely expresses a desire, threat, or expectation of cancellation, or which in any manner is ambiguous or evasive and therefore falls short of announcing an actual and unqualified cancellation as of a definite time if the premium is then unpaid, is invalid and does not terminate the policy or the liability of the insurer thereunder.</block_quote>

<bold>Street railway — title to tunnel built by street railway</bold>. <block_quote> 1. Where the issue of title is not controlled by statute or by express contract provision, the title to a tunnel or other structure or improvement which is incorporated as an essential part of a public street — and as such is necessary and of utility not merely for the operation of a street railway system but also for general vehicular traffic which may presently or subsequently be allowed on the street — is vested exclusively in the city, despite the fact that the construction cost thereof has been paid in whole or in part by the street railway company, and despite the further fact that the cost thereof has been properly carried on the company's books as a part of its capital account, and this holds true even though the company might, in some cases, in the event of a sale of all its assets to the city, be entitled to include such cost in the price.</block_quote> <bold>Same — permit of street railway company — right of city to</bold> <bold>modify</bold>. <block_quote> 2. Pursuant to M.S.A. <cross_reference>220.09</cross_reference>, the indeterminate permit provided by § <cross_reference>220.07</cross_reference>, as applied to a particular route, is subject to modification or even termination if the city, through its governing council, requires a change or removal of a particular line or designates a substitute route.</block_quote> <bold>Same — termination of streetcar service — removal of</bold> <bold>equipment</bold>. <block_quote> 3. The general rule is that after the abandonment or other termination of streetcar service the city may require the franchise or indeterminate permit holder to remove its rails, ties, wires, electrical installations, etc., from the public streets.</block_quote> <bold>Same — same — same</bold>. <block_quote> 4. In the absence of specific contract or statutory provision to the contrary, a street railway company operating under a franchise or under an indeterminate permit has no right or duty upon the termination of streetcar service to remove anything incorporated as a part of the street, and its right and duty of removal is limited to property or equipment which it owns and which is of utility primarily in operating streetcars and is not an integral part of the street.</block_quote><page_number>Page 358</page_number>

<bold>Garnishment — default by garnishee — entry of judgment</bold>. <block_quote> 1. Under M.S.A. <cross_reference>571.53</cross_reference> and <cross_reference>571.54</cross_reference>, judgment may not be entered against a defaulting garnishee prior to entry of judgment against the defendant.</block_quote> <bold>Same — same — effect</bold>. <block_quote> 2. A defaulting garnishee admits that he has property in his possession belonging to the defendant. Such admission has the same effect as a disclosure wherein the garnishee admits that he had property in his possession belonging to defendant. In either event, plaintiff acquires a lien upon such property which will enable him to proceed against a nonresident defendant by publication of the summons under Rule 4.04 of the Rules of Civil Procedure.</block_quote> <bold>Same — same — motion to vacate judgment</bold>. <block_quote> 3. A motion by a defaulting garnishee to vacate a void judgment entered against it is addressed to the sound discretion of the trial court and order granting such motion will not be reversed except for an abuse of discretion.</block_quote>

<bold>Arbitration and award — award — binding effect</bold>. <block_quote> 1. The general rule is that an arbitrator, in the absence of any agreement limiting his authority, is the final judge of both law and fact, including the interpretation of the terms of any contract, and his award will not be reviewed or set aside for mistake of either law or fact in the absence of fraud, mistake in applying his own theory, misconduct, or other disregard of duty.</block_quote> <bold>Same — same — same — mistake</bold>. <block_quote> 2. Mistake which justifies the setting aside of an arbitration award refers to a situation where the arbitrators have not correctly applied their own theory, rule, or formula which they intended to apply, so that a mistake was made which brings about a result not in accord with their own reasoning and judgment.</block_quote> <bold>Same — same — same — impeachment</bold>. <block_quote> 3. The award of the arbitrators may be impeached only if it appears that their conclusions, and the inferences upon which they are based, are so at variance with any conclusions which might legitimately be drawn from the evidence before them — including the interpretation of any contract in issue — as to imply bad faith or a failure to exercise an honest judgment.</block_quote> <bold>Same — same — same — same</bold>. <block_quote> 4. In <italic>arbitration proceedings</italic> the decision of an arbitrator who exercises an honest judgment in resolving ambiguities in the language of a contract is not to be impeached on the ground that he has thereby violated another contract provision which denies him the authority to modify, change, or amend any of the provisions of the agreement.</block_quote>