St. Paul daily globe., 1893-12-08
WITH A MODIFICATION.
RAMSEY COUNTY DISTRICT COURT rs
SUSTAINED
I'm THE FoRREsTAL CASE.

Extent Of the Note, and With
This Modification the Court Be-
low Is Affirmed-Nfne Decisions
Handed Down.
The supreme court yesterday handed
down nine decisions, all written by JUS
tice Mitchell Among them was some
what noted case from the Ramsey county
district court, entitled Daniel Bell, re-
spondent, VS.. James Forrestal, ct al,
defendant. and James e. Donnelly, ct
al, appellants. In this case the defend
ent. Forrestal, the contractor, as prin-
cipal and the other defendants as sure
ties. executed bond to the city (upon
entering into contract for the con-
struction of a sewer) which Injured to
the benefit of all who performed work,
or furnished material in the execution
of the contract. This is an action on
the bond to recover for material fur
nished by plaintiff to the defendant
Forrestal IN the execution of the con-
tract.
The matters in issue were first, how
much had been paid on the claim by
Forrestal. and second. whether certain
acts of the plaintiff had not, in part,
released the sureties from their liability
on the bond. The court below decided
that the sureties on the bond must pay
the whole of the amount for which they
were liable. and the supreme court
modined this decision, holding that the
securities We're released to the extent
OF the amount of the note. The ,sylla-
bus follows:
Daniel Bell, doing business as John Bell &
Son, respondent VS.. James Forrestal ct al,
defendants, James G. Donnelly ct al, ap-
pellants. Modified. MITCHELL, j.
SYllabus-D aud others were liable as
Sureties for an indebtedness on account
due and payable from to B. AS col
lateral security for part of the account,
b accepted from the Joint negotiable
promiSSory note of + and a third per
son, payable in sixty days, which, with
out the knowledge or consent of the
sureties, and without any express au-
thority from f, he Immediately in
dorsed and sold, realizing the money on
it, which he credited to F'S account.
But the uote- not having been paid at
maturity by the makers, B, as indorSer,
was compelled to take it up.
Held that the securities were released
to the extent of the amount of the note,
because the act of B in dispoSing of the
note operated at least as a conditional
payment on the account, which SuS-
pended all right of action on it to that
amount until the maturity of the note,
and until B as indorser had taken it up.
The syllabi i'll the other eight cases
are as follows:
John Halurtzok, respondent, VS.. Great North
ern Railway Company, appellant. Order
affirmed. MITCHELL, j.
If a servant who is employed to per-
form certain work for his master pro-
cures another person to assist him, the
master is liable for the negligence of
the latter only when the servant had
authority to employ such assistant.
But this authority may be implied
from the nature of the work to be per-
formed, or from general course of con-
ducting the business of the master by
the servant. And 1t is not necessary
that there should be an express employ
ment of the person in behalf of the
master, or that compensation be paid or
expected. 1t is enough to render the
master liable if the person guilty of the
negligence was at the time in fact rem
dering service for him by his consent
express or implied.
Horatio Houlton, appellant, VS.. Joseph CAL
MITCHELL, J.
By appearing and moving to set aside
the service of summons on the ground
that the complaint was not filed and no
copy of it served with the summons,
party does moi waive the iffegularity in
the service, although he does not eX
pressly state that his appearance his
special and limited to the purposes of
the motion.
Held also that in this case there was
no error in setting aside the service of
the summons.
Henry NJ. Bradley, appellant VS.. Robert B.
Whitesides ct al, respondents Judg-
ment affirmed. MITCHELL, j.
Webster VS.. Luther, 80 N. w. Rep,
27l, followed as to the assIgnabllity of
the right of entry of ''a soldiers ad-
ditional homestead"
A power of attorney to convey certain
lands to be thereafter acquired held to
sufficiently identify the land which may
be the subject OF the power.
Dennis F. McrGath, respondent VS.. Thomas
E. Cannon, ct al, appellants. Order af-
frmed. MITCHELL, j. I.
The rule that party who has refused
to fully perform his contract cannot
recover for part performance, applies
only TO entire and not to several con-
tracts, which are in effect separate
agreements as to different subjects, al
though made at the same time.
Horace Willistou ct al. co-partners as Willis
ton, Charnley d Co., appellants, VS.. II. p
Mathews ct al, copartners as Mathews &
Krech, respondents. Order affirmed.
MITCHELL, j.
M. had contracted to build an ore dock
according TO certain plans, and to CON-
plete the same by the 1St of May. The
timber required for the work was of pc
culiar and unusual dimensions, and in
order that the workmen be kept en-
ployed it was necessary that the timber
be furnished at stated times. And as
the dock had to be built in and over the
water it was necessary to an advantage
Gus performance of the work that it be
done while the ice remained on the
water. In January, W., with knowledge
of these facts, agreed to furnish M. all
the timber for the work in three monthly
inStallmentS, his contract containing
provision that. ''in the event of his ina
bility to furnish all or any of said tim
Der as proposed above, be agreed to
allow NJ. to purchase the same in the
open market. and charge the necessary
expense to his (W's) account, the same
as if he himself had purchased it.'
Held, that this did uoI amount to
stipulation for an exclusive measure of
damages in case of breach of the con-