Volume 265 — Minnesota Reports

<bold>Judgment — by default — propriety of order vacating</bold>. <block_quote> Record shows order vacating default judgment and permitting answer to have been within area of discretion to be exercised by trial court.</block_quote>

<bold>Automobiles — negligence of driver — identity of driver</bold>. <block_quote> 1. The owner of a vehicle who is an occupant at the time of an accident has the burden of overcoming the rebuttable presumption that he was also the driver.</block_quote> <bold>Attorney and client — client's confidential communication —</bold> <bold>authority to divulge — effect</bold>. <block_quote> 2. Within limits of professional propriety an attorney has implied authority to divulge to third persons a client's confidential communication if he deems it advantageous to his client's cause. However, such communication thereby loses its privileged character and, if otherwise admissible, it is error to exclude it from evidence.</block_quote> <bold>Evidence — attorney-client privilege — invoking without</bold> <bold>asserting in open court — when proper</bold>. <block_quote> 3. The attorney-client privilege may be invoked without asserting it in open court if the jury is unaware of the confidential communication on which it is based and cannot therefore attribute its exclusion to the wrong party.</block_quote>

<bold>Contracts — breach — duty of injured party</bold>. <block_quote> 1. Upon a breach of contract the injured party must use reasonable diligence to minimize his damages.</block_quote> <bold>Damages — contract for sale of real estate — breach —</bold> <bold>measure of damages</bold>. <block_quote> 2. The measure of damages for a purchaser's breach of a contract for the sale of real estate is the difference between the contract price and the actual or market value of the property at the time of the breach, including any expenses necessarily incurred by the seller in his effort to carry out the contract, less any sums paid by the purchaser.</block_quote> <bold>Same — liquidated-damages provision — when enforced</bold>. <block_quote> 3. Where the actual damages resulting from a breach of contract for the sale of real estate cannot be ascertained or measured by the ordinary rules, a provision for, liquidated damages not manifestly disproportionate to the actual damages will be sustained. On the other hand, when the measure of damages resulting from a breach of contract is susceptible of definite measurement, an amount greatly disproportionate to the actual damages is a penalty.</block_quote> <bold>Same — contract for sale of real estate — breach — measure</bold> <bold>of damages</bold>. <block_quote> 4. In cases of breach of contract for sale of real estate, whether or not there is a contractual provision for liquidated damages, the law adopts as its guiding principle that the injured party is entitled to receive a fair equivalent of the actual damages necessarily resulting from failure to perform the contract and no more.</block_quote> <bold>Same — same — breach by vendees — admissibility of amount</bold> <bold>received on resale</bold>. <block_quote> 5. Where the vendees in a contract for sale of real estate refuse to perform and the vendors resell the property, upon as favorable terms and under as favorable circumstances as the original sale, and they do<page_number>Page 205</page_number> so within a reasonable time and after proper notice to the vendees, the amount received on the resale may properly be admitted as evidence of the market value for the purpose of fixing damages.</block_quote> <bold>Appeal and error — review — findings — effect of</bold> <bold>uncontradicted testimony</bold>. <block_quote> 6. Uncontradicted testimony does not compel a finding in accordance therewith.</block_quote> <bold>Same — same — findings of trial court</bold>. <block_quote> 7. The burden was on the plaintiffs here to show that there is no substantial evidence reasonably tending to sustain the trial court's findings. If the evidence as a whole tends to support the findings, they should not be disturbed.</block_quote>

<bold>Judgments — res judicata — prior action in conciliation</bold> <bold>court</bold>. <block_quote> In the absence of an appeal as authorized by Minn. St. <cross_reference>491.06</cross_reference> from the conciliation court to the municipal court of St. Paul, a party may not, by again instituting an action in municipal court, relitigate the same issue against the same adversary which was presented and determined against such party in a prior action in conciliation court.</block_quote>

<bold>Process — service on party represented by attorney</bold>. Service on a party represented by an attorney must be made on the attorney unless the court orders otherwise. Such service may be made by delivering a copy to the attorney or by mailing it to him according to the methods prescribed by Rules of Civil Procedure, Rule 5.02, which supersedes Minn. St. 1949, § <cross_reference>543.17</cross_reference>.

<bold>Obscenity — sale and possession of indecent literature —</bold> <bold>information not alleging scienter — sufficiency</bold>. <block_quote> An information charging violation of Minn. St. 1957, § <cross_reference>617.24</cross_reference>, which does not allege that the defendant committed the acts prohibited with knowledge of the obscene character of materials involved, fails to state an essential element of the offense and is fatally defective.</block_quote>

<bold>Eminent domain — exercise by municipality — source of power</bold> <bold>— scope — review</bold>. <block_quote> 1. A municipality's authority to exercise power of eminent domain or with reference to zoning must be delegated by state, and in the exercise of such power municipality may not exceed limits of delegation. Under such statutory grant of power courts are authorized to determine if municipality's actions were in excess thereof.</block_quote> <bold>Same — same — requirement of need — nature of question</bold>. <block_quote> 2. Where power delegated and sought to be exercised by municipal or public service corporations is that of eminent domain and delegation thereof limits its exercise to situations where there is an actual <italic>need</italic> therefor, such corporation may not proceed to exercise such power in the absence of such need. Whether need exists is judicial rather than legislative question.</block_quote><page_number>Page 296</page_number> <bold>Municipal corporations — activation of housing and</bold> <bold>redevelopment authority — judicial review</bold>. <block_quote> 3. Where statutory grant of authority (Minn. St. c. 462) to municipality authorizes it to activate a housing and redevelopment authority empowered to exercise eminent domain and specifies that as a prerequisite thereto municipality must after a hearing "find" that within its limits substandard, slum, or blighted areas exist; adequate housing accommodations are not available to veterans; or there is a shortage of decent, safe, and sanitary housing accommodations for persons of low income; and where after required statutory hearing municipality makes findings that all such conditions exist and thereafter establishes housing and redevelopment authority, but where such findings are challenged as not based upon evidence and contrary to facts by party who appeared at hearing and whose property and business are sought to be acquired by authority created, <italic>held</italic> such proceedings of municipality are subject to judicial review by certiorari to determine whether they were in excess of municipality's statutory authority.</block_quote> <bold>Same — same — same</bold>. <block_quote> 4. Where property sought to be acquired by municipal housing and redevelopment authority is that of taxpayer who was authorized to and did appear at statutory hearing and who challenges findings made therein; and where empowering statute provides that when resolution becomes finally effective, "it shall be deemed sufficient and conclusive for all purposes" if it declares that there is a local need for such authority and finds the existence of conditions described in statute, <italic>held</italic> such taxpayer entitled to obtain judicial review by certiorari to determine validity of municipality's proceedings.</block_quote>

<bold>Evidence — qualifications of witness — personal knowledge —</bold> <bold>burden of establishing</bold>. <block_quote> 1. The burden of laying a foundation by showing that the witness had an adequate opportunity to observe is upon the party offering the testimony. What the witness represents as his knowledge must be an impression derived from the exercise of his own senses, not from the reports of others.</block_quote> <bold>New trial — grounds — accident or surprise</bold>. <block_quote> 2. Plaintiff has no ground for claiming accident or surprise because the trial court failed to provide an opportunity for a witness to testify after it excluded portions of his deposition.</block_quote>

<bold>Criminal law — increased sentence — sufficiency of</bold> <bold>information charging prior out-of-state conviction</bold>. <block_quote> Information filed pursuant to Minn. St. 610.31 charging that the defendant, convicted of a Minnesota felony upon his plea of guilty, had been previously convicted in the State of North Dakota of robbery in the first degree is not so defective as to defeat the power of the Minnesota court to impose sentence under § 610.28, which provides that any person who is convicted of a felony in this state after having been convicted under the laws of any other state of a crime which, if committed in this state, would be a felony shall be subject to an indeterminate sentence for not less than twice the shortest term nor more than twice the longest term prescribed upon a first conviction.</block_quote>

<bold>Trusts — trust instrument — construction — inclusion of</bold> <bold>adopted children of life tenant</bold>. <block_quote> A trust created for the benefit of named children and "other issue" of the life tenant "who may hereafter be born" does not exclude adopted children unless it is proved by a fair preponderance of extrinsic evidence that such was settlor's intent.</block_quote>

<bold>Elections — contest — nature of proceedings</bold>. <block_quote> 1. An election contest is, under the laws of this state, an exclusive statutory proceeding, special and summary in nature, requiring strict observance of the statute with respect to the steps necessary to provide the court with jurisdiction of the contest. The jurisdictional facts must appear on the face of the contest notice.</block_quote> <bold>Same — same — amendment of notice after time for filing —</bold> <bold>when permitted</bold>. <block_quote> 2. In order to entitle the contestant to amend his contest notice after the time provided for filing the same has expired, the original notice must be a valid notice pursuant to statute, stating facts upon which, if proved, relief might be granted.</block_quote>

<bold>Fraudulent conveyances — insolvency — transfer without fair</bold> <bold>consideration — burden of proof</bold>. <block_quote> 1. Party asserting that a conveyance is constructively fraudulent as a transfer by an insolvent without fair consideration has the burden of proving these facts.</block_quote> <bold>Same — same — same — findings — basis</bold>. <block_quote> 2. Without evidence as to the value of the assets and the amount of the liabilities of a person at the time a conveyance is made by him, there is no basis for a finding of insolvency.</block_quote> <bold>Same — same — same — same — same</bold>. <block_quote> 3. A finding of lack of "fair consideration" cannot be made without information as to the value of the interest conveyed and of the consideration exchanged.</block_quote> <bold>Same — transfer by divorced man to mother and sister —</bold> <bold>effect</bold>. <block_quote> 4. Record held to show no evidence of actual intent to defraud.</block_quote> <bold>Same — same — same</bold>. <block_quote> 5. Transfer of real estate by a divorced man to his mother and sister does not give rise to a presumption of (a) insolvency, (b) lack of consideration, or (c) actual intent to hinder, delay, or defraud creditors.</block_quote> <bold>Judgments — relief from judgment — effect of affirmance</bold>. <block_quote> 6. Affirmance of judgment on appeal does not preclude application for relief under Rule 60.02, Rules of Civil Procedure.</block_quote>