Volume 49 — Minnesota Reports

Appeal by defendant, the Winona Mill Company, from an order of the District Court of Winona County, Start, J., made July 23, 1891, denying its motion for a new trial. Defendant was a corporation engaged in manufacturing flour at its steam flouring mill at the City of Winona. For fuel in running its mill, it used sawdust and shavings made at the sawmills situated upon the bank of the Mississippi Eiver in that city.

Appeal by plaintiff, John V. Farwell, from a judgment of the District Court of St. Louis County, Ensign, J., entered July 18, 1891.

Appeal by defendants Anna S. Russell, Walter S. Martin, and Margaret Gf. Brown from an order of the District Court of Hennepin County, Hicks, J., made September 29, 1891, refusing a new trial, Richard Martin made his will September 24, A. B. 1883. He made .a codicil October 1, 1888. He died January 15, 1890.

Appeal by defendants Anna S. Russell, Walter S. Martin, Margaret G. Brown, and St. Luke’s Hospital from orders of the District Court of Hennepin County, Hicks, J., made September 29, 1891, refusing to each a new trial of the action. Many of the matters recited in the statement of facts in the preceding will case, ante, p. 22, are 'pertinent in this, and reference is here made to that statement.

Appeal by the Chicago, Milwaukee & St. Paul Bailway Company from an order of the District Court of Bamsey County, Brill, 3., made September 22, 1891, refusing to vacate and strike from the records the notice and demand of the City of St. Paul, plaintiff, for a new trial of this action under 1878 G-. S. ch. 75, § 11. The facts in this action and the character of the relief awarded are stated in the decision of this court on the former appeal therein.

Appeal by plaintiff; David A. Stuart, from an order of the District Court of Hennepin County, Hooker, J., made August 3, 1891, denying his motion for a new trial. Frederick G. Mayo on October 25, 1878, owned the southeast quarter of section twenty-five., (25,) township thirty, (30,) range twenty-four, (24,) in Anoka County, Minn., and lying about two miles northeast of Minneapolis.

Appeal by defendants Charles P. Haseltine and William H. Mitchell from an order of the District Court of Hennepin County, Smith, J., made .January 24, 1891, refusing them a new trial.

Appeal by plaintiff, Charles Bank, from an order of the District Court, Grow Wing County, Holland, J., made September 25, 1891, directing judgment to be entered on the pleadings in favor of the defendant, Brainerd School District. The plaintiff’s son Frederick, eight years old, while at play on the schoolgrounds about the Lowell Schoolhouse in Brainerd, fell and broke his leg.

Appeal by plaintiffs, John W. Chase and Emma M. Chase, his wife, from the judgment of the District Court of Hennepin County, Hooker, J., entered September 30, 1891, that plaintiffs take nothing by this action and pay costs, $17.46. The defendant, the New York Mortgage Loan Company, is a corporation organized August 26, 1890, under the laws of Minnesota and doing business at Minneapolis.

Appeal by defendants Sylvester Kipp and Orrin Kipp from an order of the District Court of Anoka County, Pond, J., made September 10, 1891, refusing a new trial. The plaintiff, Kobert A. Smith, brought this action under Laws 1887, ch.. 127, claiming to own the undivided two-thirds of the northwest quarter of section eleven, in township thirty-two, (32,) range twenty-two, (22,) in Anoka County.

Appeal by plaintiff, the National Car and Locomotive Builder, from an order of the District Court of Hennepin County, Smith, J., made September 24, 1891, denying its motion for a new trial. The plaintiff is a corporation engaged in the business of publishing a newspaper at Minneapolis, Minn.

Appeal by defendants from an order of the district court, Hennepin County, Smith, J., made September 24, 1891, denying new trial in each case. Actions by the Northwestern Railroader and the Lanward Publishing Company against the Cyclone Steam Snow Plow Company. Findings were made in each case for plaintiff.

Appeal by plaintiff, Marine National Bank of Duluth, from an order of the District Court of St. Louis County, Stearns, J., made August 29, 1891, discharging D. J. Sinclair, garnishee. On August 14, 1891, this action for the recovery of money was pending in the District Court for St. Louis County. Marine National Bank of Duluth was plaintiff and Alonzo J. Whiteman, R. E. White-man, and The Whiteman Paper Mills, a corporation, were defendants.

Appeal by defendant, George Chessman, from an order of the District Court of Hennepin County, Hooker, J., made September 1%, 1891, refusing a new trial. Luretta J. Blinn, plaintiff, by her complaint alleged that she was the owner and in possession of Lot three (3) in Block eight (8) in Demmon’s Addition to North Minneapolis, and that defendant, George Chessman, claimed an adverse interest .or estate in it, and asked judgment determining such adverse claim.

Appeal by plaintiffs, Esther M. Rowe, Frank W. Rowe, and Ida M. Simpson, from a judgment of the District Court of Hennepin County, Hicks, J., entered September 18, 1891, that plaintiffs take nothing by this action and pay $12.78 costs.

Appeal by plaintiff, The State of Minnesota, upon the relation of Moses E. Clapp, Attorney General, from a judgment of the District Court of Eamsey County, Brill, J., entered March 17,1891, dismissing the action. The defendant, The Educational Endowment Association of Minneapolis, was organized as a corporation March 8, 1883, under the laws of this state, by E. H. Steele, J. A. Steele, B. F. Knerr, John J. Ankeny, and Jacob Merritt.

<p>Appeal by defendant, The Knights of Aurora, from a judgment of the District Court of Hennepin County, Hicks, J., entered September 24, 1891.</p> <p>The defendant, The Knights of Aurora, was organized as a corporation March 1, 1889, under Laws 1885, eh. 184, by C. E. Eogers, J. L. Gause, W. A. McDowell, C. T. Eogers, Thomas Hall, C. S. Tal-bert, A. E. Smith, John K. Lane, and W. A. Hankins, of Minneapolis. Its purposes, as stated in its articles of incorporation, were to promote fraternal love among its members, to aid them in business, to assist sick and distressed members, and to prevent poverty and suffering among those dependent upon them .for support, and to establish a beneficiary fund by assessments upon its members, from which, upon the death of any member in good standing, the beneficiary named by him would be entitled to draw the amount collected from one assessment upon all the members of the order, not exceeding $3,000. It had no capital or stock and was managed by a.board of officers.</p> <p>■ This action was commenced October 11, 1890, to have the corporation adjudged insolvent, and a receiver appointed, and to restrain it from exercising any corporate franchise, and from receiving or paying out any money, and from transferring its property, and to have its assets and liabilities determined, and distribution made, and the corporation dissolved. The complaint alleged numerous violations of the law and of the provisions of its charter by defendant, and among other things stated that on October 1, 1889, defendant issued and circulated a printed advertisement of its business and affairs and recommending it to the public, and soliciting memberships and patronage, in which it falsely stated it had 18,283 members, when in fact it had no more than 1,000. The complaint further alleged that on December 31, 1889, defendant issued another advertising circular in which it falsely stated that it had 6,119 certificates of membership in force at that time, when in fact it had no more than 1,000; that Walter T. Burr, a member in good standing, died at St. Paul, July 6, 1890, holding a certificate for $3,000, payable to his wife, on which nothing could be obtained, solely because of defendant’s insolvency.</p> <p>The answer denied or explained and excused the several charges made in the complaint, and the issues were brought to trial November 25, 1890. Evidence was submitted by both parties, and the court on December 2, 1890, made and filed findings that dófendant was insolvent, and unable to pay its debts, and had violated the law under which it was incorporated, and its own charter, and further found as follows, viz: ■ ■</p> <p>That the defendant in the month of January, 1890, made and filed in the office of the Insurance Commissioner of the State of Minnesota, the annual report of its membership, business, and finances for the year 1889, which report it was by the law of the State required to file on or after the 1st day of February, 1890, and which report was verified by the oath of its managing officers, and in and by which report the defendant falsely and fraudulently reported to the Insurance Commissioner of the State that it had, during the year 1889, written and issued 6,158 policies or certificates to its insurance members, and that it had on December 31st of that year, 6,119 such policies or certificates then in force, whereas in truth and in fact the defendant had not at that time issued any number in excess of 2,320, and had not on the 31st day of December, 1889, any number of such certificates then in force in excess of 2,300, and that such false and fraudulent report of the defendant was and is a violation by the defendant of the law of the State, and was known to be such by the managing officers of the defendant at the time it was made.</p> <p>That on or about the 1st day of January, 1890, the defendant published and circulated a printed circular advertising itself and its business, and recommending the same to the public for patronage, and soliciting applications for membership, wherein and whereby defendant falsely and fraudulently represented to the public that the Order or Fraternity represented by defendant had 6,119 policies or certificates of membership in force on December 31, 1889; all which representations were substantially untrue, and were known to be so by defendant, and that the said circular was issued and circulated by the defendant for the false and fraudulent purpose of deceiving the public and the persons who might apply for membership in the said Fraternity.</p> <p>That the defendant corporation has misused the privileges and franchises conferred upon it by the State of Minnesota, and has conducted its business of life insurance in an irregular and illegal manner; has failed to keep correct records of its membership and its business transactions, and has kept pretended records of the same which were either wholly or in part fictitious, and has made and published false and untrue statements of its membership and of its financial condition and standing, with the view, and for the purpose, of misleading and deceiving the public, and thereby inducing persons not acquainted with the facts, who might rely upon such false and fictitious statements and publications, to apply for and accept membership in the defendant’s society and organization.</p> <p>That the insolvency of the defendant and the violations of law and of its Articles of Incorporation committed by the defendant are such as to entitle the plaintiff, the State of Minnesota, on the relation of the Attorney General, to the issuance of an injunction and the appointment of a receiver as prayed in the complaint.</p> <p>Judgment was entered upon the findings, and Samuel T. Johnson, Esq., was appointed receiver, and the officers were required to turn over and deliver to him its property, records, books, and papers, including the records and books sent out of the State into Wisconsin. A motion was made by the defendant for a new trial on the ground that by Laws 1885, eh. 184, § 5, it was not subject to the provisions of 1878- G. S. eh. 76, and therefore the complaint did not state facts sufficient to constitute a cause of action against it. The motion was denied and it appealed to this court from both the judgment and the order, unmindful of what was said at the close of the opinion in Hatch v. Schusler, 46 Minn. 207, and in previous cases.</p> <p>Laws 1885, ch. 184, provides a full and adequate procedure for restraining societies organized under this chapter from doing business improperly. The remedy there prescribed is the only and the exclusive remedy applicable to the defendant in this action. Section five (5) of said chapter provides, among other things, that societies organized under this chapter shall be subject only to the provisions of this act. The act itself is ample, complete, and sufficient to meet all questions and conditions that could fairly be presumed to arise under its operation. Section twelve (12) provides the manner of proceeding against a corporation for an abuse or misuse of its franchise, and also gives the insurance commissioner the power and the right to inspect and investigate the books and affairs of the society. Section fifteen (15) requires all societies, foreign and domestic, doing business in this state, to comply with all the provisions of the act. Sections eighteen (18) and twenty (20) prescribe the penalties for violating its provisions. The provisions of 1878 G-. S. ch. 76, do not apply to corporations organized under Laws 1885, ch. 184.</p> <p>Enactments regulating proceedings in specific actions are exclusive, and remove them from the effect of general legislation, which under other circumstances would apply. Isaacs v. Isaacs, 10 Daly, 306; Calking v. Baldwin, 4 Wend. 667; Town of Troy v. Cheshire R. Co., 23 N. H. 83; Dudley v. Mayhew, 3 N. Y. 9; Almyv. Harris, 5 John* 175; McKeon v. Caherty, 3 Wend. 494; Renwich v. Morris, 7 Hill, 575.</p> <p>Where there are two acts or provisions, one of which is special and particular, and certainly includes the matter in question, and the other is general, and would if standing alone include the same matter, and thus conflicts with the special act or provision, the special act must be taken as intended to constitute the exception to the general. Crane v. Reeder, 22 Mich. 322; Dewey v. Central Car d: Mfg. Co., 42 Mich. 399.</p> <p>Where a statute creates a right, and also provides a remedy, the latter is exclusive and implies a negative of any other. Hall v. Hinckley, 32 Wis. 362; Dunn v. Kanmacher, 26 Ohio St. 497; Commissioners, etc., v. Bank of Findley, 32 Ohio St. 194.</p> <p>Where a right is given by statute, and the statute also provides the method in which such right may be enforced, the statutory method must be followed to the exclusion of any other. City of Faribault v. Misener, 20 Minn. 396, (Gil. 347;) Griffin' v. Chadbourne, 32 Minn. 126; Allen v. Walsh, 25 Minn. 543; Johnson v. Fischer, 30 Minn. 173.</p> <p>If a thing is limited to be done in a particular form or manner it excludes every other mode, and affirmative expressions such as we find in the later act introduce a new rule and imply a negative of any other. District Township of Dubuque v. City of Dubuque, 7 Iowa, 262; Smith v. Stevens, 10 Wall. 321; New Haven v. Whitney, 36 Conn. 373; Wallace v. Holmes, 9 Blatchf. 65; Perkins v. Thorn-burgh, 10 Cal. 189.</p> <p>The general propositions of law urged in defendant’s brief, when accurately stated, will not be contested by plaintiff. As stated in the language of this court these propositions of law are sound and salutary. But it is insisted by the State that they do not apply to the present case.</p> <p>The act of 1885 is in no respect in conflict with 1878 G. S. ch. 76; it is, as to the remedial procedure provided for, but a supplementary act, which well may stand and be enforced incases to which it applies, without interfering in any manner with the procedure under the older act. The two acts aim to accomplish distinctly different purposes. The defendants to be proceeded against are not identical. The mischiefs to be remedied are in no respect identical. The modes of procedure are different; the earlier act provides equitable remedies for designated offenses, while the latter act provides a peculiar and special remedy for a general and undesignated class or scope of offenses. The later act not only fails to repeal the former act, but recognizes its contemporaneous existence. It is only as to the mode of transacting its business, that a corporation created under the act of 1885, is to be subject' only to its provisions.</p>

Appeal by the creditors of Shotwell, Clerihew $; Lothman from an order of the District Court of Hennepin County, Hooker, J., made July 7, 1891, approving and allowing the final report and account of Albert H. Lindeke, their assignee. Theodore Shotwell, Alexander M. Clerihew, and William Lothman were partners in trade on June 20, 1888, at Minneapolis, Minnesota, as wholesale merchants in dry goods, notions, and similar merchandise.

Appeal by defendant Augustus R. Capehart from a judgment of the District Court of Ramsey County, Kerr, J., entered May 21, 1891, in favor of plaintiff, for $1,170.57. John B. Baker was on October 23, 1889, lessee of, and was keeping, the Clifton Hotel, in St. Paul, Minn., and had therein considerable furniture, beds, bedding, carpets, fixtures, and other personal property used in hotel keeping, valued at $3,612.65.

Appeal by Edward Langevin, now deceased, from orders of the District Court of Ramsey County, Kerr, J., made January 23, 1890, sustaining demurrers to his complaint.

<p>Appeal by plaintiff, Avery Herrick, from a judgment of the District Court of Fillmore County, Farmer, J., entered July 18,-1891, in favor of defendant, Joseph Newell, for $17 costs and disbursements.</p>

Appeal by the defendants St. Paul & Duluth Eailroad Company and Northwestern Fuel Company from an order of the District Court of St. Louis County, Stearns, J., made August 31, 1891, refusing a new trial. The city of Duluth instituted this action to remove the structures and coal bins of the Fuel Company out of the southerly end of Fifth avenue west. This avenue extends from the high lands down towards the shore of the harbor.

•Appeal by plaintiffs, Lewis P. Richardson and Anna M. Richard'son, from a judgment of the District Court of Hennepin County, Jíicks, J., entered August 28, 1891, that plaintiffs take nothing by their action. This action was brought under 1878 Gr.

Appeal by defendant, the Prentice Brown Stone Company, from an order of the District Court of Hennepin County, Hooker, J., made June 20, 1891, refusing it a new trial. The plaintiff and defendant are both Wisconsin corporations. The .plaintiff, The National Protective Association, is organized to furnish laborers with medical attendance and nursing in ease of sickness, and funeral expenses in case of death.

Appeal by plaintiffs, William Buxton and Kenneth MacRae, from an order of the District Court of Hennepin County, Hicks, J., made September 11, 1891, refusing their application for a new trial .of .the action. The defendant, Alonzo H. Beal, in September, 1890, owned a lot on Fourth street, between Nicollet and Hennepin avenues, in Minneapolis, Minn., twenty-five feet front by one hundred and fifty-seven feet deep.

Appeal by defendant, W. Q. Spencer, from an order of the District Court of Hennepin County, Canty, J., made September 5, 1891, refusing his application to that court for a new trial of the action. The plaintiff, Mathias Eachac, brought this action to recover a balance of $156.40 of the agreed price for seeding six hundred and twenty (620) acres of land in Traill County, North Dakota, in April and May, 1889, at one dollar per acre.

Appeal by plaintiff, John B. Ellison, from an order of the District. Court of Hennepin County,■ Smith, J., made September 8, 1891, refusing his application for a new trial of the action. The defendant, William H. Truesdale, was on June 28, 1888, appointed receiver of the property of the Minneapolis & St. Louis-Railway Company, and since that date has operated its lines of railway in behalf of its creditors.

Appeal by plaintiff, Helen Hendrickson, from an order of the District Court of Meeker County, Powers, J., made September 5, 1891, refusing her motion for a new trial. Michael Hendrickson was killed about three o’clock in the afternoon of June 30, 1890, at King’s Crossing, in Meeker County, on the Great Northern Railway. He was struck by the east coming passenger train while crossing the railway track with team and empty lumber wagon. The plaintiff is his widow.

Appeal by defendant, John Ludlum, from an order of the District Court of Hennepin County, Hicks, J., made June 2, 1891, refusing his application for a new trial of this action. Action brought by the Irish-American Bank of Minneapolis upon two promissory notes signed “New York Pie Company by E. J. White, manager,” payable to the order of A. P. Thompson, and by him indorsed to the bank before maturity.

Appeal by plaintiff, Mary Hepfel, as administratrix of the estate of her daughter, Mary Hepfel, deceased,, from an order of the District Court of Eamsey County, Egan, J., made September 5, 1891. refusing a new trial. Mary Hepfel, the daughter, was killed about four o’clock in the afternoon of Sunday, November 17, 1889, at Martin Lumber Company’s yard, near Rice street bridge, in St. Paul.

Appeal by plaintiffs Edward Yanish and Samuel Gr. Horsnell from a judgment of the District Court of Ramsey County, Kerr, J., entered September 26, 1891, adjudging that defendants are owners of a part of Lot four (4) in Block twenty (20) in Olivier’s Addition to West St. Paul.

Appeal by plaintiff, Charles A. Long, from an order of the District Court of St. Louis county, Stearns, J., made September 28, 1891, sustaining a demurrer to the complaint. This action was commenced by Louis H. Grieser, a resident and taxpayer of the City of Duluth, against the city and its Mayor, Treasurer, Comptroller, and Clerk, to enjoin it and them from executing or issuing its bonds for $800,000.

Appeal by Albert M. Powell, M. E. Campbell, paid others, creditors of the Minneapolis Mutual Fire Insurance Company, (Insolvent,) from an order of the District Court, Hennepin County, Hicks, J., made… Held: further, that no funds raised by assessment on mutual policies could be applied to the payment of these claims, and that no assessment on mutual policies could be made to raise funds to pay these claims.

Appeal by plaintiff, the Sioux City & St. Paul Eailroad Company, from a judgment of the District Court of Nobles County, Severance and Brown, JJ., entered August 20,1891. - Plaintiff brought this action against Lawrence Singer and Jacob Harder to recover possession of a lot fronting on Tenth street in the Village of Worthington, Nobles County, Minn. The defendants answered denying that plaintiff had any title to the lot.

Appeal by defendant, Nehemiah Hulett, from an order of the District Court of St. Louis County, Stearns, J., made September 19, 1891, refusing his application for a new trial.

<p>(Opinion published 51 N. W. Rep. 907.)</p>

Appeal by defendants, William A. Godwin and Charles A. Wright, from an order of the District Court of Hennepin County, Canty, J., made July 13, 1891, refusing a new trial. Held: in effect, on the former appeal of this case, (44 Minn. 355,) that entries after August 11, 1888, in the records of the corporation, were not evidence against defendants.

Appeal by defendant, The J. E. Clark Company, a corporation, from an order of the District Court of Hennepin County, Hooker, J., made August 31, 1891, overruling a demurrer to the complaint. The plaintiff, Edward J. Schubert, by his complaint, stated that defendant was a domestic corporation engaged in the business of manufacturing stepladders of wood for sale to the trade.

Appeal by defendant, John F. Ramberg, from an order of the District Court of Chisago County, Williston, J., made December 17, 1891, refusing his motion for a new trial. The defendant, on November 6, 1889, had a general retail store at Rush City, Minn. Plaintiff was a farmer, sixty years of age, and went there in the afternoon of that day to buy goods, and fell down the cellar stairs, as stated in the opinion. The action was tried October 15, 1891.

Appeal by defendant, John Ludlum, from an order of the District Court of Hennepin County, Hooker, J., made July 21, 1891, refusing him a new trial. Action brought by the Irish-American Bank of Minneapolis upon two promissory notes, signed “New York Pie Company, by E. J. White, Manager,” payable to the order of A. P. Thompson, and by him indorsed to the bank before maturity.

Appeal by plaintiffs, William J. Dean, Charles C. Webber, Charles H. Deere, and Stephen H. Yelie, from an order of the District Court of Freeborn County, Farmer, J., made February 25, 1892, overruling plaintiff’s demurrer to the fourth paragraph of the answer.

Appeal by defendant, Chicago, Milwaukee & St. Paul Railway Co., from an order of the District Court of Traverse County, C. L. Brown, J., made July 2, 1891, dismissing its appeal from a judgment rendered against it in Justice Court. E. M. Stolt, plaintiff, recovered a judgment in Justice Court December 18, 1890, against' the Railway Company.

Appeal by plaintiff, George S. Luce, from an order of the District Court of Hennepin County, Lochren, L, made August 14, 1891, refusing his application for a new trial. On July 30, 1874, at Galesville, Wis., Albert E. Clarke, the defendant, bought of plaintiff, for $2,400, the Galesville Journal and subscription list, and the printing presses, type, furniture, and material used in its publication.

Appeal by defendants Charles B. Lawton and Irene E. Lawton from a judgment of the District Court of Ramsey County, Cornish, J., entered against them May 18, 1891, for $608 damages and for costs.

Appeal by plaintiff, Ernest N. Smith, as administrator of the estate of Lafayette H. Smith, deceased, from an order of the District Court of Otter Tail County, Baxter, J., made February 18, 1892, denying a new trial. Lafayette H. Smith and Henry H. Rice recovered a judgment October 5, 1876, against William H. Barclay in Cook County Circuit Court, Illinois. It.was revived by scire facias in that court on November 6, 1885.

<p>Acknowledgment of Execution of Mortgage^ — Clerical Error in Name. —Where the certificate of acknowledgment of an instrument identifies the party as known to the officer to be the person who executed the same, a variance in spelling the name of such party as appearing in the certificate will be presumed to be a clerical error merely, and will not vitiate the acknowledgment.</p> <p>-Evidence — Statement of Agent, when Hearsay. — Statements of an agent to a witness, in respect to past transactions between his principal and a •third party, held hearsay and incompetent evidence.</p> <p>(Opinion published 52 N. W. Rep. 27.)</p>

Appeal by Charlemagne Tower, Jr., Richard Henry Lee, and Julius A. Bailey, executors and trustees under the will of Charlemagne Tower, Sr., deceased, from the judgment of the District Court of St. Louis County, Stearns, J.,-entered Sept. 8, 1891. Charlemagne Tower, Sr., died testate July 24,1889, at his residence in Philadelphia, Pa., seised of 17,935,acres of land in Wadena, Otter Tail, Becker, Clay, and Norman counties, and of considerable real estate in the city of Duluth.

Appeal by defendant, Peter P. Swenson, Sheriff, from an order of the District Court of Hennepin County, Lochren, J., made June 27, 1891, denying his motion for a new trial. Action by Mathea Granning, plaintiff, to recover damages for taking by defendant, as Sheriff of Hennepin County, of a quantity of lumber of the value of $400, which she claimed belonged to her.

Appeal by plaintiff, Joseph Emmert, from so much of a judgment of the District Court of Nobles County, P. E. Brown, J., entered October 19, 1891, as adjudged that defendant Cornwell be first paid $1,434.82 and interest out of the proceeds of the sale of the land described.

Appeal by defendant, Gottfred Heipler, from a judgment of the District Court of Lac qui Parle County, Powers, J., entered July 6, 1891, in favor of the Minnesota Thresher Manufacturing Company, plaintiff, for $73.13. This action was commenced in a Justice Court, where plaintiff had judgment upon an accepted draft, of which the following is a copy: Marietta, October 17, 1889.

Appeal by Nellie M. Weide, one of the defendants, from a judgment of the District Court of Eamsey County, Cornish, J., entered November 7, 1891. The plaintiff, the Haupt Lumber Company, on March 18, 1890, and between that day and May 1, 1890, sold and delivered to defendant John Westman lumber of the value of $419.57, which he used in performing his contract to build a two-story frame dwelling house for defendant George G. Berg, on a lot in Stinson’s Division to St. Paul.

Appeal by defendants, William E. Howard, Henrietta J. Howard, bis wife, Winnie L. Taylor, Chester E. Smith, and Oscar L. Taylor, from an order of the District Court of Eamsey County, Kerr, J., made September 19, 1891, refusing their application for a new trial.

Appeal by plaintiff, Wiseman A. Sparrow, from a judgment of the District Court of Dodge County, Buckham, J., entered January 18, 1892. Plaintiff, Wiseman A. Sparrow, recovered a judgment September 6, 1886, in the District Court in Dodge County, against defendant, Cephus H. Pond, and others for $364.04.

Appeal by defendant Hans 0. Peterson from an order of the Municipal Court of the city of Minneapolis, Mahoney, J., made March 2, 1892, denying his motion for a new trial. Action upon a promissory note for $450, dated December 27,1890, payable to the order of the plaintiff three months thereafter. The defendant by his answer denied that he made, executed, or delivered the note. The action was tried December 24, 1891. A jury was waived.

Appeal by defendant, Charles F. Deither, from an order of the District Court of Bamsey County, Otis, J., made January 10, 1891, overruling his demurrer to the complaint. The Petrole Fuel Company of Minneapolis, a domestic manufacturing corporation, was organized June 22, 1889, with $200,000 capital. The stock was divided into 2,000 shares, of $100 each.

Appeal by defendant, William A. Alden, from an order of the Municipal Court of the city of Minneapolis, Elliott, J., made September 1, 1891, refusing a new trial. The plaintiff, Jonathan Peterson, bargained orally with defendant on February 28, 1888, for lots twenty-nine .(29) and thirty (30) in block seventeen (17) in Prospect Park addition to Minneapolis. They were subject to two mortgages for $1,560, and interest, $34.

Appeal by plaintiff, Carroll A. Nye, from a judgment of the District Court of St. Louis County, Stearns, J., entered August 17, 1891, denying the relief sought. On November 27, 1886, plaintiff owned one hundred and thirty-, eight acres of timber land near Vermilion Lake, midway between Tower and Ely, in St. Louis County, and worth about $2,000. The defendants, James H. Swan and Ira 0.

Appeal by Peter J. E. Clementson, guardian of William H. A. Granstrand, from an order of the District Court of Hennepin County, Hicks, J., made September 19, 1891, denying him a new trial. Mr. Clementson was on March 5, 1880, appointed by the Probate Court of Hennepin County guardian of the person and estate of William H. A. Granstrand, a minor, then seven years old. As such guardian, he, on March 23, 1881, received $1,821.72 belonging to his ward.

Appeal by defendant, John Grimes, from an order of the Municipal Court of the city of Minneapolis, Mahoney, J., made September 11, 1891, refusing him a new trial. Complaint was made in said court that on June 30, 1891, in said city, John Grimes kept a gambling device known as a stock clock, then and there used in gambling, contrary to an ordinance of that city. He was arrested, tried, and found guilty, and fined $100.

Appeal by defendants, E. W. Eddy and Judith S. Walsh, from an order of the Municipal Court of the city of Minneapolis, Mahoney; J., made January 13, 1892, refusing a new trial, after verdict for plaintiff for $262.50. The discussion in this court was upon the evidence, —whether it sustained the verdict.

Statement of facts made by the District Court of Washington County, Williston, J., March 17, 1892, on application of St. Croix Boom… Held: its officers elected, its corporate seal kept; and where the meetings of its board of directors are held, the seat of the intellectual, as distinguished from the physical, power of the body is located, that is, in a sense, its place of residence, and the place where its personal property is properly listed for taxation and taxed.”…

Appeal by Citizens’ National Bank of Fergus Falls, Minn., from an order of the District Court of Otter Tail County, Baxter, J., made October 5, 1891, dismissing its petition for a receiver of the property of Ole A. Minge.

Appeal by plaintiff, Eric P. Mykleby, from an order of the District Court of Ramsey County, Wilkin, J., made October 23, 1889, denying his motion for a new trial. Action to recover $20,200 for personal injury sustained by the plaintiff from the willful, malicious, and violent acts of the servants of the Chicago, St. Paul, Minneapolis & Omaha Railway Company in managing its passenger train.

Appeal by plaintiff, James L. Burgess, from an order of the District Court of Bamsey County, Kerr, J., made March 3, 1892, overruling his demurrer to the answer.

Appeal by defendant Edward E. Davidson from a judgment of the District Court, Eamsey county, Egan, J., entered January 19, 1892. This was an action to foreclose .a mechanic’s lien. The plaintiff, Neis J. Ness, between November 11, 1887, and January 28, 1888, furnished materials and built stone walls upon lots three, (3,) four, (4,) nine, (9,) and ten, (10,) in block twenty-one, (21,) St. Paul Proper.

Appeal by defendant Edward E. Davidson from a judgment of the District Court of Ramsey county, Sgan, J., entered January 4, 1892. This case involved the same questions as the previous one of Ness v. Da-vidso'n, ante, p. 469. Thomas Looby did the brick work on the alterations of the Exposition Rink building. His bill was $3,180, on which he was paid $1,367.51, and he made and filed a lien'statement for the balance. He brought this action.

Appeal by plaintiff, Union Cash Register Company, from an order of the Municipal Court of the city of Minneapolis, Twohy, J., made September 19, 1891, denying it a new trial. Action by Union Cash Register Company against Peter John to recover $40, part of the purchase price of a Cash Register which he ordered sent to him from its factory.

Appeal by plaintiffs, Thor E. Bjorngaard, Andrew G. Henderson, Frank -J. Linne, Andrew Ellingson, and Frederick W. Hoyt, from a judgment of the District Court of Goodhue county, Crosby, J., entered February 20, 1892. The defendant the Goodhue County Bank was on July 7, 1890, a corporation organized under the laws of this State, and doing a banking business at Eed Wing, in that county.

Appeal by defendant, the St. Paul & Duluth Railroad Company, from an order of the District Court of St. Louis County, Stearns, J., made March 26, 1891, denying its motion for a… Held: run over, and crushed, and had to be amputated. The action was tried May 27, 1890. The plaintiff had a verdict for $10,000. The defendant moved the court to set this verdict aside, and grant a new trial. Being refused, it appealed. The questions discussed were as to the facts on the evidence.

Appeal by plaintiffs, Lucie Bemillard and five others, her children, from an order of the District Court of St. Louis county, Stearns, J., made August 29, 1891, refusing them a new trial. This action was brought under 1878 G. S. ch. 75, § 2, to determine the adverse claims of the defendants, Frank Blackmarr and twenty-two others, to eighteen unoccupied town lots in the village of Fond du Lac, in St. Louis county.

Appeal by defendant Thomas H. Canfield from an order of the District Court of Otter Tail county, Baxter, J., made July 31, 1891, denying his application for a new trial. The plaintiff, Orrin M. Cowles, was on November 2, 1885, owing'defendant Canfield $700 and interest from April 1, 1885, at the rate of ten per cent, a year, amounting to $741.03. The debt was not due. One half of it would fall due April 1, 1886, and the other half one year thereafter.

Appeal by plaintiff, Lucy M. Doty, from an order of the District Gourt of Dodge county, Buckham, L, made January 6, 1892, denying her motion for a new trial. On May 9, 1889, plaintiff resided at Kenyon, and was working in the printing office of a local newspaper. In the evening of that day she went with her aunt to the station of the Chicago, St. Paul and Kansas City Railway at that place, to deliver a package to Mr. Ballard, who was expected on the evening train.

Appeal by defendant, C.' B. Waddell, from the judgment of the Municipal Court of the city of Minneapolis, Mahoney, J., entered October 8, 1891. Complaint was made October 1,1891, by J. Cousineau, that defendant on that day drove a team and lumber wagon along Hennepin Avenue Boulevard, from Douglass Avenue to Eighteenth Street, contrary to section twelve (12) of an ordinance of the Board of Park Commissioners adopted June 25, 1887.

This is an original proceeding brought January 7, 1892, in this court by the Attorney General upon the relation of Gates A. Johnson.

Appeal by plaintiff, George J. Flint, from a judgment of the Municipal Court of the City of St. Paul, Twohy, J., entered November 19, 1891. On October 3, 1890, plaintiff rented to defendant Ellen Sweeney a house and lot in St. Paul for one month, and from month to month thereafter, for $50 per month. She and her husband, Edward Sweeney, entered, and she kept a boarding house, and remained in possession until July 7, 1891, and then removed.

Appeal by defendant, the Chandler Iron Company, from an order of the District Court of St. Louis county, Start, J., made March 19, 1891, refusing its application for a new trial. The plaintiff, Gustaf Bergquist, a Swede, was employed by defendant August 5, 1889, and set to work underground in its iron mine at Ely, Minnesota. In this mine was a drift or tunnel running east and west, excavated before plaintiff was employed.

<p>Appeal by defendant The National Savings, Loan & Building Association from the judgment of the District Court of Bamsey county, Brill, J., entered July 24, 1891.</p> <p>The defendant was incorporated August’ 14,1888, by Mahlon D. Miller, Frank P. Blair, Wm. T. Kirke, Wm. L. Hackett, and Chas. E. Hamilton, under 1878 G. S. ch. 34, § 109. On September 10, 1889, it amended its articles of incorporation with intent to comply with Laws 1889, ch. 236. On October 24, 1890, Wm. J. Woolsey applied to defendant for a loan of $7,200 to be secured by mortgage on Lot five (5) in Block two (2) in Dayton’s Addition to St. Paul. Defendant was not able to lend him the money at that time, but agreed with the plaintiff, the National Investment Company, that if it would make the loan to Woolsey the defendant would, on or before January 1st then next, take an assignment of the mortgage, and repay the plaintiff the money with interest.</p> <p>The plaintiff thereupon loaned the money to Woolsey, and took his notes and mortgage, and after January 1, 1890, tendered to the defendant the securities and an assignment of them, and asked it to take the loan off its hands as agreed. The defendant, The Building Association, refused to accept the assignment or fulfill its agreement on the ground that Woolsey was not one of its members, and the proviso at the end of 1878 Gr. S. ch. 34, § 109, prohibited it from taking the loan, and that plaintiff was presumed to know this when it made the agreement.</p> <p>The plaintiff then began this action to compel defendant to perform and pay the money. The defendant demurred to the complaint, but the demurrer was overruled by Cornish, J. An answer was then served, and the issues were tried June 25, 1891, before Brill, J., without a jury, who made findings and directed judgment for plaintiff for $7,200 and interest and costs. Defendant made a motion for a new trial, but it was denied, and judgment was entered, and it appealed.</p> <p>The contract is prohibited by the laws of the State. It is illegal, in that it contemplated a use of defendant’s funds unauthorized by law, contrary to the purpose for which it was organized, and the contract is therefore void. 1878 Gr. S. ch. 34, § 109; Laws 1889, ch.' 236, § 4; Thomas v. West Jersey R. Co., 101 U. S. 71.</p> <p>Defendant does not rest its defense upon the fact that the contract is ultra vires, but upon the ground that it is prohibited by the public policy of the State, and was made in direct violation of the law of the State, of which both parties are presumed to have had knowledge. Harris' v. Runnels, 12 How. 79; Coppell v. Hall, 7 Wall. 542; Os-canyan v. Winchester Repeating Arms Co., 103 U. S. 261.</p> <p>The defendant could not, for certain reasons, make the loan to W. J. Woolsey, and requested the plaintiff to do so, and the plaintiff advanced the money to Woolsey, relying upon defendant’s contract, and upon the faith and credit of its promise to pay the amount to the plaintiff on the first day of January, 1891. The mortgage from Woolsey would be perfectly valid in the hands of the defendant, and enforceable- against Woolsey, even if he never became a member of the defendant. Union Nat. Bank of St. Louis v. Matthews, 98 U. S. 621; National Bank of Genesee v. Whitney, 103 U. S. 99; Merchants’ Nat. Bank of St. Paul v. Hanson, 33 Minn. 40.</p> <p>The contract was fully executed by the plaintiff, and the defense of ultra vires cannot be interposed. 2 Mor. Priv. Corp. §§ 689-698; State Board of Agriculture v. Citizens’ St. Iiy. Co., 47 Ind. 407; Bradleys. Ballard, 55 111. 413.</p>

Appeal by garnishees, Eobert Mannheimer, Emil Mannheimer, Jacob Mannheimer, and Benjamin L. Goodkind, from a judgment of the District Court of Eamsey county, Otis, J., entered against them September 17, 1891, for $1,061.48.

Appeal by defendant A. E. Capehart from a judgment of the Municipal Court of the City of St. Paul, Gory, J., entered July 30, 1891, for $328.26. The plaintiffs, Henry Schroeder and Herman Schroeder, brought this suit to recover the reasonable value of milk and cream sold and delivered to defendant at the Clifton Hotel, St. Paul, between June 1 and October 16, 1890.

Appeal by defendant, the Chicago, Milwaukee & St. Paul Eailway Company, from an order of the District Court of Winona county, Start, J., made July 22, 1891, overruling its demurrer to the complaint.

Appeal by defendants Sarah A. Severance and William N. Severance, her husband, from a judgment of the District Court of Ramsey county, Cornish, J., entered December 2, 1891. Plaintiff, Matilda H. Davis, on April 1, 1890, held and owned two promissory notes made by defendants Sarah A. Severance and husband, one for $2,100, and the ether for $500, both past due and unpaid, but inadequately secured by a mortgage of eighty acres of land in Swift county.

Appeal by defendant, George H. Munro, from an order of the District Court of Stevens county, Powers, J., made August 20, 1S91, refusing a new trial. R. C. Munger, of St. Paul, sold to George T. Elsham and Herbert J. Northcott pianos and other musical merchandise, and on May 6, 1889, received their notes therefor, due four months thereafter. They failed to pay, and on February 4, 1890, he obtained judgment against them upon the notes for $815.85.

Appeal by defendant, Frank A. Carlson, from a judgment of the District Court of Goodhue county, Williston, J., entered September 9, 1891, for $173.70 and costs. Samuel D. Greenwood, on July 15, 1885, rented a farm to De Witt C. Duryea for five years five and a half months from that date, for an annual rent of $350, payable quarter-yearly. In June, 1886, Duryea mortgaged his growing crop of barley and oats for $500 to the plaintiffs, John Woodcock and Walter W. Doyle.

Appeal by defendant, Augustus R. Capehart, from a judgment of the District Court of Ramsey county, Kelly, J., entered June 22, 1891. Between June 1 and August 18, 1890, the plaintiff, the Lehigh Coal & Iron Company, a corporation, sold and delivered to defendant, at the Clifton Hotel, St. Paul, one hundred and forty-seven tons of coal, of various grades, at the agreed price of $629.35. This action was to recover pay for it.

Appeal by defendant, Owen J. Evans, from an order of the District Court of Hennepin county, Canty, J., made August 25, 1891, refusing a new trial. Plaintiff, William Fitzgerald, on February 20, 1890, bought of defendant a stallion for $1,000.

Appeal by plaintiff, James I. Allen, from a judgment of the District Court of Hennepin county, Lochren, J., entered December 12, 1891. . The American Building & Loan Association of Minneapolis was incorporated under the laws of this State.. James H. Bishop, Thomas E. Bishop, and C. Wright Davidson were directors and officers of the corporation, and they and it were the defendants in this action.

Appeal by defendants, Matthias Haug and Joseph A. Mannheim, from an order of the District Court of St. Louis County, Stearns, J., made September 19, 1891, granting a new trial. The plaintiff, the Farmers’ & Merchants’ State Bank of Minneapolis, on April 8, 1891, bought of W. J. Marson a promissory note for $1,000 and interest, made by defendants, and payable to him or his order, dated October 25, 1890, and due six months thereafter.

Appeal by defendants, Peter Carlson, Swan Carlson, and Aaron Olson, from an order of the Municipal Court of the City of Duluth, Morris, J., made January 14,1892, denying their motion to set aside a judgment against them. The plaintiff, Charles Carlson, obtained judgment in the Municipal Court of Duluth on June 2,1S90, against defendants for $198.61 upon contract. The defendants were served with summons, but did not appear or answer.

Appeal by defendant William H. Eustis from an order of the District Court of Hennepin county, Canty, J., made August 29, 1891, refusing his motion for a new trial. Wilson J. Yan Dyke brought this action to recover the contents of a promissory note for $3,800, and interest, dated October 4, 1886, payable to his order seven months thereafter, made by Seelye & Harris, and indorsed by W. E. Neal & Co., of which last-named firm Eustis was a member.

Appeal by plaintiffs, George Joannin and Christian 0. Hansen, rom a judgment of the District Court of St. Louis county, Stearns, ., entered February 10, 1891. This action was brought upon a note for $497, and interest, dated May 1, 1891, payable to plaintiff’s order fifteen days thereafter. It was made by defendant David Ogilvie, and indorsed for his accommodation by F. H. Barnard, the other defendant.