St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1893-11-14

pOliCy W IuuI CnCCl.
The syllaDi of the various opinions are
as follows:
Minneapolis, st. Paul L. Sault Ste. Marie
Railway COMPANY, respondent vs. Home
Insurance Company, appellant; Minneap-
oils, st. Paul d. Sault Ste. Marie Railway
Company, appellant, VS.. Home Insurance
Company, respondent. Order reversed.
MITCHELL, j.
The policy issued by defendant to
plaintiff on the property of shippers
construed us an insurance for the benefit
of plaintiff only, to the extent of its
liability as carrier and warehOuSeman
In All action on the policy the bills of
ladlng fixing the liability of the plaintiff
TO the shippers as carrier and ware
houSeman are the measure of defend
ants liability to the plaintiff, and can
not be varied by parol evidence. In an
action to enforce rights dependent on
written contract, although the suit be
between strangers to the instrument, or
between a stranger and one of the
parties to the contract, the rule against
varying written instrument applies.
A liability incurred by the plaintiff on
collateral contract to procure insurance
on the property of shippers is not a
liability aS carrier or warehouSeman
within the meaning of the policy.
Huntress & Brown Lumber Company, re.
spondent. VS.. NJ. e. Wyman ct al, appel
lantS, Anna NJ. Costello ct al executors
etc., respondents. Order affirmed.
MITCHELL, j.
Held, that the court was justified in
granting new trial on the ground of
accident or surprise which ordinary
prudence could not have guarded
against"
Llewelyn H. Cobb ct al, formerly partners
as Cobb d Norrish, app Giants. VS. John r.
Cole, respondent Judgment affirmed.
MITCHELL, j.
Findings held to be justified by the
evidence.
John Slocum Jr., ct al, appellants, VS. Ed
ward Is; Breezy ct al. respondents. Order
affirmed. MITCHELL i
Where deed has been accepted as
full performance of an executory con-
tract to convey real estate, the contract
Is merged in the deed, upon which alone
the rights of the parties thereafter rest:
and i'll case the deed contains no coven-
ants, and there be no ingredient of fraud
or mistake OF fact, the grantor cannot
recover back the consideration paid be-
cause OF failure of title.
And this is so, although the deed thus
accepted varies from that stipulated for
in the contract, as where the vendee
accepts the deed of third party in lieu
Of the deed of his vendor.
But the deed of the third party not
being what the contract called for, the
burden is upon the vendor to prove that
1t was accepted as performance of his
contract. 1t would also be competent
for the Vendee to prove by parol that
1t was not accepted as performance of
tile contract or only accepted as such
cOndltlOnally. Such evidence would not
contradict the terms OF the deed or tend
to prove that 1t was not to be operative
as conveyance according to its terms.
Held. however, that the evidence In
this case concluSively proved that the
deed of the third party was uncondi-
tlonally accepted as performance OF the
vendors contract to convey.
Merchants National Bank of Crookston.
respondent. VS.. Robert Stanton ct al, de.
PENDANTS, b. l.. Dobson ct al, appellants,
MITCHELL, j.
Upon The appeal Of Dobson the judg-
ment is affirmed, and upon the appeal
of Martin that part OF the judgment
which adjudgeS that the mill and ma
chinery referred to are part of plant
ifs mortgage security is reversed, and
new trial of that issue only is ordered.
Where buildings are erected by one
having no interest Ill the land on which
they stand, by the permission or license
of the owner OF the land, an agreement
will be implied lin the absence of any
other facts or circumstances tending to
show different intentiOn) that the
buildings shall remain the personal
property of him who erects them.
Where the land is subject to a mort
gage if the agreement of the mortgagor
in possession and the party erecting the
building was that it should remain the
personal property of the latter, the alb
Sence OF concurrent agreement on the
part of the mortgage to the same effect
will not of itself make the building a
part of the mortgage security.
A married man and his wife executed
mortgage on their homestead and
other lands, and subsequently united in
a conveyance, with covenants of war
ranty,of the other lands. Held, that the
land remaining in the mortgagors, al
though their homestead, becomes the
primary fund Tor the payment of the
mortgage.
Macarthur VS.. Martin, % Mimi, "a,
distinguished.
Betty Weitzner ct al. appellants, VS. Ole A.
Thingstad, respondent Order affirmed.
MITCHELL, j.
The contract Of the husband. without
his wife Joining therein, to convey his