St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1886-02-02
Supreme Court,


c. Aultman g. Co., appellants, VS.. Knude OF
son, respondent
Syilabus-In an action by the payee upon
an instrument of money fraud practiced by
the payees agent in procuring the instrument
to be entered in terms materially different
from those in fact agreed to by the maker is
available to the maker. he having acted in
good faith as defense ire
spective of whether in the particular
matter to which the fraud related
the agent acted under true or false assump-
ton of authority. TO such a case the law OF
precision has no application, the defense
being that the instrument is not the makers
instrument, but void. Order denying new
trial affirmed. BERRY, j.
Joseph Vogel, respondent, VS.. d. NJ. Osborne
d Co., appellant.
Syllabus: Plaintiff alleges that defendants
had, during disputed claim against them.
made settlement thereof as the result of
which plaintiff made defendant two notes
upon defendants agreement Ito refund the
receipts of settlement" l. e., the two notes
upon breach of a certain warranty: that the
warranty was broken and due demand made
for the notes, with which defendant failed TO
comply.
Held, that upon this state of facts in an
action upon the agreement to refund plaintiff
is entitled TO nominal damages, but not to
substantial damages unless he paid the notes
IN the exercise Of reasonable diligence he dis
covered the breach of the warranty, or I'M
less being negotiable they were before ma
turity Endorsed to a bona fide holder. Order
denying new trial reversed and new trial di-
rected. BERRY l.
Nicholas Van Loon, appellant. VS.. &. w
Griffin, Melvin Griffin aud Egbert Griffin,
copartners, as e. w. Griffin Bros, respond
ents.
Syllabus-The afIidavits of plaintiff used on
the motion TO strike out the answer
herein as sham, held to make
Tapip oafn
afhdavits or other proof in defendants behalf
in support of the answer, and that in the alb
sence thereof the motion should be granted
and such answer stricken out.
Order reversed aud cause remanded for
further proceedings, in conformity with this
opinion. VANDERBuRG j.
d. A. Valentine. appellant, VS.. the city of st.
Paul, respondent.
syllabus-The defendant proposing to open
and extend "a street." its board of public
works assessed the damages costs and ex-
penses thereof upon the property
deemed benefited, including certain land
OF plaintiff, and on Sept. 2. 1881. the
assessment was confirmed. On Nov. %, 1881,
judgment was rendered in the district court
against PLAINTIFF land (Which was delinquency
for the amount assessed thereon and on Jan.
10, 1882, his land was sold upon the Judgment
for the amount of the assessment and
costs. On June Is, 1883, plaintiff
paid the amount with which his
land was charged by the Judgment
and sale to the city treasurer who gave him
receipt therfor. No part of the proposed
street has been opened. and the project of
opening the street has been abandoned by the
city. Held, That plaintiff is ent tiled to re-
cover the amount paid by him il an action
against the city alone as upon a failure of the
consideration for which the same was paid
Held, further, that even if the abandonment
TOOK place before the payment was made by
plaintiff, though after the judgment and sale
mentioned. he is still entitled to recover the
payment not being voluntary but by coercion
of law.
The order sustaining the demurrer is over
ruled. BERRY. /