Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1881-12-25

novation of parties whereby by accessions anc
agreement of all parties intended the debt ol
Tyrer was extinguished and defendant for q
valuable consideration assumed the debt as his
own.
The evidence considered and held that il
does not show any novation of parties, or that
the debt of Tyrer was ever extingulshed, OF
that there was any consideration for the al
legged promise of defendant to plaintiff to pay
the debt
Hence that any such promise, ii made, was
void as being without consideration.
Order denying new trial reversed.
MITCHELL, J.
Jabob ". Bass, respondent, vs.. Thomas Vet
nue., appellant.
Syllabus-A written contract is to be con-
strued with reference to the whole OF its
terms, so as, if may be, TO give force and effect
10 each of its stipulations.
Judgment affirmed. CLARK, I.
Maurice Brown, respondent, VS.. Edward
Brown, appellant.
Syllabus-Where a loan OF sum
of money was made upon the terms
and conditions that the debt therefor
should become due and payable with interest
whenever the party making the loan should
thereafter demand the same, and not before
such time.
Held, That a demand of payment was part
of this contract and condition precedent To
the liability TO repay the money, and that the
statute of limitations begun TO mature from
the date of the demand, and not from the date
of the contract.
On an appeal by the defendant, from judg-
meDt rendered against him by default upon
service by publication, it cannot be assigned
for error here hat no security Tor judgment
was filed, such appeal bringing 10 this court
not raH
by law to contain such security. The RENE
dy in such case is by motion to vacate
the judgment.
Judgment affirmed. CLARK, j.
James Weaver, respondent, VS.. The Mssis-
sippi and Rum River Boom Company, APP
psllant.
Syl!abus-The defendant, by the construc-
ton and maintenance of its boom across the
Mississippi river, invaded the land OF plaintiff
"a ripa rian owner-bY superindUced additions
of water, earth, logs, and other material, SO
as to efIectually destroy or impair It's useful
ness.
He'd, That this was nota mere consequential
injury, but amounted to taking of the pro
perty within the meaning OF &c. IL, art. |, OF
the constitution of the State. That de-
PENDANT had no right to thus use or take
plaintiffs property without his consent, with
out first paying compensation therefor. That,
not having paid plaintiff compensation, the
fact that defendant had constructed and main
tanned the boom with proper care ana Skill
and in the manner pre- scribed by the charter,
would be no defense to an action By the land
owner for the injury to his property.
The evidence tended to show that the tres
pass of defendant deprived plaintiff of the use
of his property for certain period OF time;
Hence the value of such use became material
in determining the amount of damage which
plaintiff had sustained.
Held That il was competent 10 show what
defendant had agreed to pay plaintiff for The
use OF the same property for term lmmedl-
ately preceding the trespass, the same being
in the nature of an admission as to value, al
though subject to explanation:
Order denying a new trial affirmed.
MITCHELL, J.
j. mes Weaver, respondent, VS.. The Mississip-
pi and Rum River Boom company, appel
liant.
Syllabus: complaint which alleges tres
mass upon real estate, and that the plaintiff
was thereby deprived of the use of the prop
erty, and that such use was reasonably worth
a certain sum, is sufficient, although it does
not IN terms allege that plaintiff was dam
aged.
Upon the trial the plaintiff, for the purpose
of showing the value of the use of the prem.
Uses of which he was thus deprived, introduced
in evidence a lease wherein the defendant
had agreed to pay plaintiff S7CO year Tor
like use and occupation of the same premises,
for term Immediately preceding the alleged
trespass In rebuttal, the defendant offered to
show that it executed his lease when an in
junction against it and in favor of the plaintiff
was pending, and held it had no alternative
but to accept plaintiffs terms or turn its logs
over st. Anthony falls and lose them. This
offer was excluded.
Held, error That the lease being thus is
sued against defendant as an admission that
the use of the premises was worth what
it agreed to pay, it had a right to explain the
circumstances under which it was made.
Order denying a new fatal reversed, and new
trial ordered.
MICHEL, J.
The borough of Henderson, appellant, VS..
The Board of County Commissioners OF the
County of Sbey, respondents.
Syllabus-The board of county commission
ers, of the county of Sibley, by resolution,
determined to erect upon the land oil the
county building for court house and county
offices, to cost not less than 1900, provided
the Borough of Henderson would pay into the
county treasury So 600 toward its cost, IN con-
sideraton of which the resolution granted to
the borough the right to occupy and use the
the second story of the building as city hall
for borough purposes, when not in use by the
district court; and further provided, that if
the county seat should at any future
time be removed from the Borough
of Henderson, the county should have
the oution of transferring the land and build
ings to the borough upon the payment of
$4,000, or of refunding to the borough the
sum of $1,000; and, further provided, that the
county should not sell or convey the property
at any time previous to the removal of the
county seat without the consent of the bor-
eugh The proposition was accepted by the
oonnci1 Of the hOrOuph
Held, That the contract was beyond the
powers of the county commissioners, and the
borough acquired no legal rights under it.
The $1,000 having been paid
into the county treasury pursu-
ant to the contract and appropriated
by resolution to the board of county commits
sioners for the erection of building for coun-
ty purposes.
Held, That the borough is entitled to re-
cover the sum back from the county on &C.
count for money had and received.
Order reversed. CLARK, ..
Patrick Kelly respondent, vs.. the St. Paul
Minneapolis s. Manitoba Railway company
appellant.
Syllabus Plaintiff while crossing the rail
acfr 1rr-