Volume 263 — Minnesota Reports

<bold>Zoning — zoning ordinance — denial of permit for authorized</bold> <bold>use — when proper</bold>. <block_quote> 1. Under comprehensive zoning ordinance of city of Minneapolis enacted pursuant to Minn. St. <cross_reference>462.18</cross_reference>, city is bound to comply with terms, provisions, and classification of property in such ordinance, subject only to exception that if there is evidence that a nuisance will result from a commercial use authorized therein, in a particular neighborhood, city may deny application for permit for such use.</block_quote> <block_quote> It may not deny such permit merely because it may disagree with some prior council in its determination that a certain classification of property under zoning ordinance was justified.</block_quote> <bold>Same — same — denial of permit for gasoline filling station</bold> <bold>— when arbitrary</bold>. <block_quote> 2. This court has held that a gasoline filling station is not a nuisance per se, or of a questionable nature in itself, but on the contrary is of a useful character and necessity in these days of heavy automotive traffic.</block_quote> <bold>Same — same — same — same</bold>. <block_quote> 3. Where claim that gasoline station proposed for plaintiff's property would constitute a nuisance in neighborhood is not raised; and where proposed plans and mode of operation planned therefor are indicative that no nuisance will result from its operation; and where<page_number>Page 2</page_number> other evidence submitted is adequate to support court's finding to such effect, <italic>held</italic> such finding must be sustained on appeal.</block_quote> <block_quote> Evidence that city has approved special permits for a large number of gas stations within its boundaries, many of which were in near vicinity of schools, playgrounds, and residences, <italic>held</italic> indicative that here city acted arbitrarily and capriciously in denying plaintiffs application for special permit because of proximity of plaintiff's property to school, playground, and residences.</block_quote> <bold>Appeal and error — review — findings of trial court</bold>. <block_quote> 4. On appeal from district court, this court must consider findings in the light of evidence submitted most favorable to prevailing party. Such findings will not be reversed unless manifestly contrary to evidence. Rule in Kiges v. City of St. Paul, <cross_reference>240 Minn. 522</cross_reference>, <cross_reference>62 N.W.2d 363</cross_reference>, followed.</block_quote> <bold>Zoning — zoning ordinance — denial of permit for gasoline</bold> <bold>filling station — when arbitrary</bold>. <block_quote> 5. Testimony of witnesses and evidence submitted at trial considered and held adequate to support court's finding that construction and operation of gasoline filling station on property classified for commercial purposes under comprehensive zoning ordinance would not result in traffic, fire, or safety hazards.</block_quote> <bold>Same — same — denial of permit for authorized use — when</bold> <bold>proper</bold>. <block_quote> 6. Classification of property under comprehensive zoning ordinance must govern and may not be restricted except where it is shown that nuisance will result from use of property permitted thereunder. City may not nullify and destroy definite and valuable interests in real property by arbitrarily placing restrictions thereon greater than those provided in comprehensive zoning ordinance. Exercise of police power does not authorize arbitrary intermeddling by city with private ownership of property though its acts be labeled for preservation of health, safety, or general welfare.</block_quote>

<bold>Eminent domain — value of land — evidence of sales of nearby</bold> <bold>property — admissibility</bold>. <block_quote> 1. In condemnation proceedings evidence with reference to recent sales of other property in proximity to land involved is inadmissible as substantive proof of reasonable market value of the latter.</block_quote> <bold>Trial — cross-examination as to document signed before trial</bold> <bold>— admissibility in redirect examination</bold>. <block_quote> 2. Where cross-examination of witness with reference to document previously signed by him appears to discredit him or to impeach his testimony as to matters under consideration, document to which cross-examination was directed may be received in evidence in redirect examination of witness if it rehabilitates him, or if it tends to establish truth of his testimony impeached upon cross-examination.</block_quote> <bold>Same — same — same</bold>. <block_quote> 3. Where cross-examination of witness with reference to a document signed by him does not discredit or impeach him, and does not create inference that his testimony differs from statements<page_number>Page 87</page_number> in document, opposing party cannot on redirect examination submit document in evidence under guise of rehabilitating witness.</block_quote> <bold>Same — same — same</bold>. <block_quote> 4. Where in condemnation proceedings cross-examination of expert witness with reference to appraisal report upon which his opinion was based did not cast doubt upon his credibility, or constitute an impeachment of his testimony, <italic>held</italic> court erred in receiving such appraisal report in evidence on redirect examination, and in permitting witness to testify with respect to recent sales of land reported therein.</block_quote>

<bold>Criminal law — violation of ordinance — right to jury trial</bold> <bold>— extent</bold>. <block_quote> 1. L. 1959, c. 388, in effect from April 24, 1959, to July 1, 1961, applied to municipal court of Minneapolis. Thereunder one accused of violating a municipal ordinance, regulating traffic or otherwise, was entitled on appeal to district court to a jury trial whether or not he had received such trial in municipal court.</block_quote> <block_quote> Under present statute, Minn. St. <cross_reference>484.63</cross_reference> (L. 1959, c. 388, as amended by L. 1961, c. 683, § 7), right to appeal from conviction of ordinance violation is preserved but, since July 1, 1961, right to jury trial on appeal exists only if accused did not receive jury trial in municipal court.</block_quote> <bold>Same — violation of traffic ordinance — right to jury trial</bold> <bold>— validity of former statute</bold>. <block_quote> 2. The temporary advantage of two jury trials thereby granted to a Minneapolis traffic ordinance violator does not transgress either the procedural uniformity requirements of Minn. St. <cross_reference>169.03</cross_reference> as declared in State v. Hoben, <cross_reference>256 Minn. 436</cross_reference>, <cross_reference>98 N.W.2d 813</cross_reference>, or the constitutional requirements of equal protection.</block_quote>

<bold>Taxation — income taxes — deduction for bad debt reserves —</bold> <bold>right of savings and loan associations to take under former</bold> <bold>statute</bold>. <block_quote> In view of changing conditions in the business and as a matter of prudent management, relator savings and loan associations were justified in taking a deduction for additions to reserves for bad debts in computing their Minnesota income taxes for the years 1953 to 1956 notwithstanding their inability to show a bad debt experience with respect to their own operations.</block_quote>

<bold>Criminal law — trial — instructions — error — failure to</bold> <bold>object</bold>. <block_quote> 1. Objection to the inadvertent use of defendant's first name in referring to an accomplice during the court's charge is deemed waived if the objection is not made in time to permit a correction.</block_quote> <bold>Trial — instructions — requested instruction covered in</bold> <bold>general charge</bold>. <block_quote> 2. Courts are not required to charge the jury in the exact language requested by defendant if the instructions as given correctly set forth the applicable law.</block_quote> <bold>Criminal law — trial — instructions — error — failure to</bold> <bold>object</bold>. <block_quote> 3. The court having given a correct charge on the necessity for corroboration of an accomplice's testimony under Minn. St. <cross_reference>634.04</cross_reference>, failure to specify a particular witness as one to whom the rule might apply was not prejudicial error. The omission will not in any case be reviewed if timely objection is not made and it is not assigned as a ground for a new trial in defendant's motion to the lower court.</block_quote> <bold>Same — prosecution for uttering forged check — evidence of</bold> <bold>other attempts to negotiate instrument — admissibility</bold>. <block_quote> 4. In a prosecution for uttering a forged check it was not error<page_number>Page 210</page_number> to admit evidence of other attempts by defendant to negotiate the same and similar instruments on the day of the offense.</block_quote> <bold>Constitution — right to fair trial — attorney as juror —</bold> <bold>effect</bold>. <block_quote> 5. An attorney at law is exempt, but not disqualified, from acting as a juror, and his failure to volunteer the fact of his professional status did not deprive defendant of a fair trial.</block_quote>

<bold>Contracts — implied in fact — establishment</bold>. <block_quote> 1. The evidence in this case sustains the trial court's findings that there was an agreement, implied in fact, that upon the death of one of two partnership brothers the survivor should be the owner of certain property acquired with partnership funds and carried in the name of one of the partners or in their names jointly.</block_quote> <bold>Same — same — effect</bold>. <block_quote> 2. A contract implied in fact, if established, is a contract as much as an express contract. The difference in a contract implied in fact and an express contract lies mainly in the manner of proof.</block_quote> <bold>Partners — disposition of property upon death of partner —</bold> <bold>character of agreement — validity</bold>. <block_quote> 3. The Uniform Partnership Act does not preclude an agreement between partners for a disposition of partnership property upon dissolution contrary to the governing statutory provisions controlling in the absence of such agreement.</block_quote> <bold>Same — same — same — same</bold>. <block_quote> 4. An agreement between partners providing that upon the death of one the survivor shall be the owner of the partnership property is not testamentary in character and is valid in the absence of fraud.</block_quote> <bold>Contracts — implied in fact — review — view of evidence</bold>. <block_quote> 5. In determining whether the evidence sustains a finding that a contract, implied in fact, existed between partners, all the evidence must be considered and viewed in the light of what the parties intended.</block_quote>

<bold>Workmen's compensation — employer-employee relationship —</bold> <bold>evidence</bold>. <block_quote> The evidence sustains the finding of the Industrial Commission that a farmer who was employed part-time by a fertilizer company in the sale and application of fertilizer to farm land was an employee of the company at the time he received injuries.</block_quote>

<bold>Constitution — due process — accepting plea of guilty based</bold> <bold>on indefinite recollection — effect</bold>. <block_quote> 1-2-3. Where petitioner, charged with crime of attempted robbery in the first degree, appeared with counsel and entered plea of guilty to the charge, and then stated to the court that he had consulted with his counsel and had been fully advised as to consequence of his plea and desired to have it stand, <italic>held</italic> petitioner had not been denied due process notwithstanding that upon inquiry by court he had then stated that because of his intoxication at time of crime his recollections thereof were indefinite, but that he did have a "vague recollection of it"; that he remembered having been in fight in the filling station being robbed; that he recalled fleeing from the station and attempted robbery; that he remembered that immediately after the robbery he had gone to Milwaukee in a stolen car; that at time of robbery he had an automatic pistol but could not remember if it were used in robbery or where he had procured it; and that because of all such circumstances he "thought" he was guilty and wished to enter such a plea. State ex rel. Norgaard v. Tahash, <cross_reference>261 Minn. 106</cross_reference>, <cross_reference>110 N.W.2d 867</cross_reference>, and State ex rel. Dehning v. Rigg, <cross_reference>251 Minn. 120</cross_reference>, <cross_reference>86 N.W.2d 723</cross_reference>, considered.</block_quote> <bold>Same — same — same — same</bold>. <block_quote> 4. Under principles set forth in State ex rel. Norgaard v. Tahash, <italic>supra</italic>, facts here require that order of trial court, wherein petitioner was denied writ of habeas corpus, be affirmed.</block_quote>

<bold>Reformation — when granted — evidence required</bold>. <block_quote> 1. Before a court of equity will interfere to reform a written instrument, it must be established by clear, consistent, and precise evidence that there was a written instrument which failed to express the real intention of the parties and that, in the absence of fraud or inequitable conduct or concealment of known facts, the mistake was mutual.</block_quote> <bold>Same — same — same</bold>. <block_quote> 2. The evidence in this case supports the trial court's findings that the requirements for reformation of an instrument have not been met.</block_quote><page_number>Page 309</page_number>

<bold>Appeal and error — appeal from judgment — failure to assign</bold> <bold>errors — scope of review</bold>. <block_quote> No errors have been assigned on this appeal. So far as the judgment appealed from is concerned, it is not for this court on the state of the record to inquire whether the findings of fact are justified by the evidence but only whether they support the conclusions of law and the judgment. In so far as errors of fact are concerned no question is presented on this appeal. The court had jurisdiction; the findings of fact stand in effect unchallenged; and the conclusions of law sustain the judgment entered.</block_quote>

<bold>Contracts — substantial performance — when recovery of</bold> <bold>damages permitted</bold>. <block_quote> 1. The rule denying a contractor who is a "willful transgressor" damages for substantial performance has no application where the jury has resolved the issue of the contractor's conduct in his favor.</block_quote> <bold>Same — action for balance of contract price — submission of</bold> <bold>quantum meruit</bold>. <block_quote> 2. Where it is obvious the jury has found that an express contract governs, there was no prejudice in submitting the alternative issue of plaintiff's right to recover on quantum meruit.</block_quote> <bold>Same — trade rules — admissibility — effect on contract</bold>. <block_quote> 3. If there is evidence that the parties to a contract in their dealings with one another have recognized the existence of trade rules, it is proper for the court to receive the rules in evidence and to submit to the jury the question of whether the parties intended to be bound by them.</block_quote> <bold>Trial — instructions — breach of contract — failure to</bold> <bold>charge on measure of damages for fraud</bold>. <block_quote> 4. The court's failure to charge the jury on the measure of damages for fraud is harmless error where there is implicit in the verdict a finding that fraud was not proved.</block_quote><page_number>Page 471</page_number> <bold>Pleading — counterclaim — amendment</bold>. <block_quote> 5. The court did not abuse its discretion in denying defendant's belated motion to amend its counterclaim to assert in a contract action a claim for damage to defendant's reputation.</block_quote> <bold>Contracts — contract to defraud — instructions</bold>. <block_quote> 6-7. The court's instructions with respect to the invalidity of contracts to defraud third persons <italic>held</italic> proper, and other assignments of error found to be without merit.</block_quote>

<bold>Negligence — possessor of land — liability to trespassing</bold> <bold>child — basis</bold>. <block_quote> There is no proof in the instant case sufficient to establish liability under the four conditions stated in Restatement, Torts, § 339. There must be causal relationship between a breach of the railway company's obligations and the injury to the child. Actionable negligence does not exist unless there has been a failure to discharge a legal duty to the one injured.</block_quote>

<bold>Zoning — ordinance — validity — requirements</bold>. <block_quote> 1. Municipal zoning ordinances affecting interests in real property must be in interests of public health, safety, or welfare. Where they bear no relationship to such interests; where they are discriminatory or rest upon intent to protect enterprises from competition or create monopolies within certain areas; or where they are enacted primarily in adherence to esthetic concepts of municipal planning commission, they will be held invalid.</block_quote> <bold>Same — same — review by courts</bold>. <block_quote> 2. Where evidence reasonably supports finding that in enacting zoning ordinance municipality acted in excess of police power, courts will hold ordinance invalid. In deciding issue, courts may weigh evidence and draw inferences therefrom as in other cases involving questions of fact. Likewise, courts may consider uses or classifications of property adjacent to that involved, and where it is apparent that challenged zoning ordinances have resulted in surrounding such property by commercial or industrial operations prohibited to it, courts may hold ordinances invalid as applied thereto. The courts may also give consideration to gross differentiation in valuation of property resulting from classifications under zoning ordinances in deciding<page_number>Page 554</page_number> whether action of municipality in adopting such ordinances was arbitrary or unreasonable.</block_quote> <bold>Same — same — same — functions of supreme court</bold>. <block_quote> 3. On appeal from decision of district court holding zoning ordinances invalid, functions of this court require its consideration of all evidence submitted in proceedings and its determination as to whether such evidence, when considered in light most favorable to prevailing party, supports district court's findings therein. Duty rests upon courts to insure that zoning ordinances do not constitute an arbitrary or discriminatory exercise of legislative prerogatives, particularly where they destroy valuable property rights.</block_quote> <bold>Same — same — same — same</bold>. <block_quote> 4. Evidence examined and held adequate to support district court's findings and conclusions (1) that defendant's zoning ordinances as applied to plaintiffs' property were invalid; (2) that zoning ordinances adopted by defendant on February 13, 1961, classifying plaintiffs' property for office building uses were not in compliance with, nor a good-faith attempt to comply with, the district court's decision that such property was adaptable to community store purposes under defendant's zoning ordinances and that plaintiffs were entitled to use it for such purposes; (3) that as to plaintiffs' property the zoning ordinances of February 13, 1961, were even more arbitrary, discriminatory, unreasonable, and confiscatory than were the previous ordinances held invalid by the court; (4) that defendant's zoning ordinances as they relate to plaintiffs' property were adopted by defendant pursuant to its design to protect present enterprises in the area from competition; and (5) that such ordinances had rendered the commercial use of plaintiffs' property practically valueless and as to the triangular strip they had the effect of completely confiscating it without making just compensation therefor.</block_quote>