St. Paul daily globe., 1892-12-28


genkamp ct al, defendants; Fred Ruf ct
al., appellants. Order affirmed
DIcKrNsoE. j.
Syllabus = Ii. contracted with the
plaintiff to erect for her a block of build
ings for the specific price of $500,
which was to be paid at intervals of two
weeks in proportion to the progress Of
the work, upon estimates OF the super
vising architects, Is per cent of the es-
Inmates being, however, reserved until
completion. H., with the defendants as
his Sureties, executed an indemnity
bond to the plaintiff, conditioned that
he should perform his contract. and
that they would save the plaintiff harm
less from mechanics liens.
Ii. abandoned the contract before the
completion OF the buildings. Where
upon, the plaintiff calling upon the de-
PENDANTS to take action i'll the premises,
they employed NJ to complete the build
ings, and this was done. M. receiving
the unpaid part OF the price, including
the 10 per cent thereof which had been
reserved while III. was prosecuting the
work. While Il. was engaged in tae
construction some extra work was done
and the specifications were departed
from in some particulars by direction of
the plaintiff, but the defendants were
not notified of this by the plaintiff.
There was also extra work and de-
partureS from the specifications while
NJ. was doing the work. Under both ii.
and Nj. debts were incurred by them
which subjected the property to
mechanics liens, upon which judgment
was afterwards rendered against the
property.
Held: First-When the defendants
employed NJ. to complete the construc-
tion they assumed the relation of princi-
pal obigors as to the work thereafter
done, Nj. being their agent. They were
responsible to the plaintiff for liens i'm
posed on the property by reason of the
debt incurred by M. Secondly avail
ing themselves of the benefit Of the con-
tract. receiving Qhrough NJ the con-
tract price including the Is per cent re-
served while Ii. was engaged in the
work, they are precluded from making
the defense that they were discharged
from obligation by reason of the
changes referred to. The plaintiff was
under no obligation TO voluntarily IN
form them OF such changes. Third
of proper amounts, but ut intervals
somewhat different from that specified
in the contract two weeks) deemed im-
material. Fourth-The pendency of an
action by other parties (the lienOrS) TO
recover personally against the defend
ants for materials sold while NJ. was do
ing the work is no defense to the action
by this plaintiff, to recover for the liens
imposed Oh the property.
William R. Marshall, appellant, VS.. Edward
Gilman. reSDOndent Order reversed.
and new trial granted. DICKINSON, j.
Representations of fact made by the
owner of property as inducements TO It's
purchase by another, relied upon by the
latter as being true, and constituting a
substantial inducement to the pur-
chase, become obligatory on the vendor
as a contract, even though the vendee
may have been also influenced by infor
nation derived from other sources.
An allegation of notice to party may
be sustained by proof of notice to an
authorized agent, although the agency
be not pleaded.
If one negotiating for the purchase of
lot of land represented to be of a GER
tain width, afterwards accepts convey
ance describing the property as being
of less width. he cannot be deemed to
have purchased relying upon such prior
representation.
A vendee of real estate having sued
to enforce a reSclsSlon OF the sale by
reason of false representations under II
contract providing for asreSciSSlon, and
being denied such relief by reason of
his delay in seeking that relief, and by
reason of conduct inconsistent with
right to rescind,s is not thereby barred of
the right to prosecute subsequent
action eX cOntractu to recover damages
breach
ing to a warranty.
Ella NJ. Moore, appellant, VS.. II. C. Norman,
respondent. Order affirmed.
DICKINSON, j.
A tender by debtor to creditor (who
in good faith asserts that the amount
rendered is insuthcienD is not good as q
tender if it be coupled with such condi- |
tions that the acceptance Of the same
will involve an admission by the cred |
ltOr that no more is due.
In such case tender by the maker |
to the payee Of promiSsory notes (the |
same being mature and still held by the |
payee). coupled with demand for the |
surrender of the notes, held not effect |
ual as tender, so as to discharge chat |
tel mortgage securing the notes.
A direction by the maker of the notes !
to one acting as his agent to apply |
ilOHGI Ill Ills IldIIS " IilC pay VI
the notes, which notes such agent then |
held as the agent of the payee, does not |
OF itself constitute or have the effect of |
such an application ofthe money.
Savings Bank of ST. Paul, appellant, vs. |
Donat Arthur ct al. defendants. E.J DAY. |
respondent. Order affirmed,
DICKINSON, j.
SylIabus-A summons directed to the |
defendant was served upon another |
person. The later mailed to the defend |
ant copy served upon him and the de-
fendant received it by mail.
Held, no service and judgment having |
been entered on default, the defendant |
was entitled to have it set aside as void |
on melton, without showing meri- |
toriouS defense.
Edward S. Farrell. ct al. respondents, VS..
Julius d. Howard, appellant Judgment
reversed. DICKINSON. j.
A contract having been entered into
for conveyance Of certain land sub |
ject to mineral reservation made by st. |
Paul q Duluth Railway company" and |
it appearing that the vendoris title was |
derived from that company by con-
veyanee containing certain defined !
reservations with respect to mineral |