St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1891-08-28
State Appellate Court Re-
verses a Decision of the
Duluth District Court.
A Fine Legal Point Raised in
a Case Over the Leased
Property.
Appellate Judges Also EIuei-
date a Breach Of War
ranty Case.
A ROsemount Farmer Has His
Leg Broken in a Run
away.

The supreme court yesterday re-
verSed the order of the district court in
Duluth, in the case of Charles p. Craig,
ct. al, appellant, against Bigio Sum-
mers, respondent. 1t was an action to
recover rent and taxes on premises oc-
cupied by the defendant in Duluth. A
lease of the property in question. which
the plaintiffs claim was an assignment
pro tanto, passed to the defendant.
Afterwards the plaintiffs acquired the
title in fee though mesne conveyances,
and, it is alleged, defendant continued
in the occupancy four months there
after.
Charles P. Craig ct al, appellants, against
versed. VANDERBURGH, j.
= Where by the terms of a lease the
lessee assumed to pay sail taxes, levieS
or assessments on the premises during
the continuance of the lease" he is
liable for taxes and assessments which
have been ''duIy levied, charged and
confirmed" upon the leased property
during the term, although they may be
payable hereafter. Whenever a lessee
grants or transfers the whole term for
which the premises were leased to him,
having no reViSiOnary interests in it him
self, it amounts to an assignment and
is not suitcase. This results by OPP
Grafton Of law without regard to the
form of the instrument. A mere reser-
Walton of rent OF a right of re-entry for
a breach of any of the conditions of the
lease, will not change the legal rela
tons of the parties. and the introduce
ton of covenants into the instrument,
hot In ffnn5r nfTn hot
the immediate parties thereto, does not
change the legal effect of giving up the
reYerSion.
Breach of Warranty.
Massachusetts Loan and Trust Company.
Trustees, etc., appellant VS.. Bridget
Nelsch, substituted, etc. respondent.
Order affirmed. VANDERBURGH, j.
In an action to enforce purchase
money mortgaged the mortgagOr may
set up and have apjudicated in the same
action his claim for damages for a breach
of warranty of the mOrtgaged property
in reduction of the amount due on the
mortgage, and may defeat the action
altogether if his damages are equal to
the unpaid purchase price. An assign
ment of the mortgage is without predi-
udice to such right of set off. 1t is
competent for the seller to abrogate or
waive the strict provisions or cOndi-
tons of the warranty, though agents
are not allowed to do so. And
And conditions involving the forfeiture
of a right to recover damages for
breach thereof are not favored and will
be strictly construed. Where in
written agreement of warranty on the
sale of threshing machine it was stipu-
lated that If within three days after it
was set up and started it should not
work as warranted the buyer should at
once discontinue its use and
notify the seller in writing and
wait for the seller to send a man
''tO right it." and within that time an
agent representing the company and
authorized to make necessary repairs
or changes, appears and undertakes the
same, the required notice is superseded.
And where such agent, under his gen
eral authority to make, or cause to be
made, suitable repairs, has taken charge
of the machine for the purpose of
"righting" it, and upon experiment
thereafter it continues to work badly
and not as warranted, and the buyer
under his direction continues to use it
in reliance to his promise to fix it, and
put it in complete repair, which he fails
to do, the buyer does not forfeit his right
to recover upon the warranty by the
reason of the expiration of the time
limited in the contract for the trial
thereof, before the repairs are fully
made. And the subsequent recognition
of the acts of Its agent by the seller in
attempting to complete the repairs as
promised by him, will also be held a
waiver of the strict terms of the war
ranty in respect to the trial of the ma
chine.
a Rehearing.
David NJ. Finlayson, ct al, respondent, VS..
Abram Crooks, appellant. MITCHELL, j.
Opinion on rehearing: Upon the
motion for reargument counsel have
principally addressed themselves to the
question of the proper method of dis
tributing the proceeds Of sale where a
mortgage lien has interviewed between
the liens of different claimants for labor
or material-that is, the distribution of
the amount set apart equal to the liens
prior to the mortgage. This is a queS
ton in which the appellant has no in
teTest, and, hence, even if the opinion
suggests an erroneous method of diStri-
button, it would constitute no ground
for reargument. The question was
really not before the court. Neither
was the question fully argued by cOun-
sci. Moreover, it is one which presents
some serious, practical difficulties,
whether the method of distribution fol-
lowed by the trial court or that suggest
ed in the opinion be adopted. For these
reasons, while denying the application
for a reargument, we shall consider
the question still an open one, to be de-
termined upon fuller argument and
consideration whenever it arises here