St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1886-10-07
The Supreme Court.

The following cases were disposed of in the su-
preme court yesterday:
Thomas F. Frawley, respondent, VS.. George W.
Hoverter John B. Hoverter. Henry "A. Kreider and
Cornelius Smith ct al, appellants; Judgment ST..
Louis county; motion to dismiss denied.
John K. Miller, relator VS.. A. R. Wiswell, c. A.
Alton FL. Lyons. county commissioners OF Wa
dena comfy, and +. c. Field, auditor of said Wa
dena county, respondents; appeal from clerk S
taxation Of costs; taxation ordered modified by
striking out item amounting to s29. Is.
James S. Upton William Brown and Henry NJ
Strong Upton, Brown & Coz. appellants, VS.. John
Kubesh and John Shetka, respondents; order LIE
Sueur county; motion OF respondents to dismiss
granted.
Holmes, appellant; appeal from clerks ref sal
to enter Judgment under the rules; motion to
strike from calendar granted.
Frederick Wehineier. respondent, VS.. John
Bohenest appellant; judgment municipal court,
city of St. Paul, Ramsey county; motion to dis
miss denied.
John Hedlund, respondent VS.. j. A. Pagan, ap-
pellant; Judgment municipal court, city of Min
neapolis, Hennepin county; judgment affirmed.1
& Frank Flibotte, respondent, VS.. Abigail Mullen,
appellant Judgment municipal court, city of st.
Paul, Ramsey county; motion to strike out GER
tain parts of return argued and submitted.
Eva Clapp, formerly Morse, administrator OF the
estate of Henry l.. Morse deceased respondent
VS.. The Minneapolis s. st. Louis Railway Com
pany, appellants.
Syllabus-Where an accident caused by broken
switch-rail resulted in the derailment of an en-
gne and the death of the engineer in charge
thereof and the evidence tended to show that
the rail was too weak and light to support rolling
stock used the road, held that the risk of such
defects was not to be deemed to have been
sumed by the deceased unless it appeared that he
had notice that the rail unsafe, proof OF SINH
lar accidents at the same switch under same con-
ditions held admissible following. Morse VS.. r..
R., 30 Mimi.
the charge of the court is indefinite or omits
material instructions is not ground of exceptions,
where the attention of the court is not specifically
invited to the matter or special instructions
asked, In an action for the benefit of the widow
and next of kin for damages for injuries, causing
death, and as having reference to the question of
the reasonable expectation of pecuniary benefit
to them, if the deceased had survived, it was not
for the court to instruct the jury that they
might consider his age health capacity to earn
money, and the injury to his business, disclosed
by the evidence Order denying new trial af-
frmed, VANDER8URGH, j.
Anthony T. Thomas appellant, Hiram X.
Joslyn, respondent.
Syllabus-Where in an action for the specific
performance of contract for the sale OF real
estate, Judgment was rendered on the merits in
favor of the defendant, held that the judgment
was a bar in another action to reform the con-
tract. and to enforce it as reformed. Where q
party elects to upon written contract as
executed, and the action proceeds to trial and
Judgment after final submission, he is bound b y
his election and cannot thereafter bring an action
to reform the contract. Order affirmed.
VANDERBURGH, J.
Charles G. Coleman, appellant, Charles c.
Goodnow. James E. Craig and Charlotte Good
now, respondents.
Syllabus-The plaintiff furnished materials for
the building erected by defendant on desi gnated
village lot in pursuance OF a contract by them
Jointly entered into by them with him. The title
to the lot was, in the meantime, in a third party,
and shortly prior to the completion of the build
ing one of the defendants transferred his interest
to the other, and the title to the lot was there
upon conveyed to the other. Held, that the plain
tiff was entitled to enforce lien for the amount
q building
the defendants were estopped to deny title and
ownership therein. In order to perfect his lien
the material man must file duly verified account
thereof within the statutory time, and when such
account purported to be to before the regis
ter of deeds, but not properly attested by his
seal so as to entitle it to be recorded within the
time limited held sufficient to preserve and con-
tinue the lien. Judgment affirmed.
VANDERBURGH T.