St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1895-02-15
USURY DECLARED
By Justice Start in the Case
Of Phelps Versus Mont
gomery
AN ACTION ON TWO NOTES.
Lower Court Is Reversed and
Montgomery Denied a
New Trial.
CAUSE OF ACTION LIES
Where Property Is Vacated
Contrary to Contract
Other Decisions.
CAUSE OF ACTION LIES

Chief Justice Start, in one of four
decisions filed yesterday, declares
certain promissory notes usurious
in the case of William F. Phelps, re-
,spondent, VS.. Thomas J. Montgom-
cry, appellant.
Montgomery loaned Phelps $4,000
Oct. 4, 1893, on two promissory notes,
to be paid in four months, with inter-
est at 10 per cent per annum: The
court also found that Montgomery
exacted, in addition to the 10 per
cent, fifty shares of mining stock
valued at $3.50, and directing judg-
ment canceling the notes as usuriouS
and demanding a return Of the col
lateral security, consisting of life
insurance policy and the shares of
the shares of stock were given
merely to interest him in Phelps
mine, but the claim Of Phelps that
they were given as a bonus is sup
ported by the court, and the decision
in favor of Phelps and denying Mont
gomery's motion for new trial is
sustained.
The syllabus of the decision fol-
lows:
IMPORTANT TO LAND OWNERS.
A decision of special interest is the
case of R. c. and Annie W. Kalk-
hoff, appellants, VS.. B. F. Nelson, as
receiver for James H. Bishop & Co.,.
of Minneapolis, respondent. The ap-
pellants had leased property to the
Bishop company for term of years,
which the receiver of the company
vacated. When the case was tried
IN the lower courts, it was held that
the owners could not maintain, an
action for damages for breach of
contract, as the corporation was not
in existence any more. The supreme
court now reverses this decision.
holding that a cause of action i'm
mediately accrued to the owners
of the property for the recovery of
all damages present and prospective
Which they sustained by the loss of
the contract; that the appellants in
this case are entitled to prove their
claim against the receiver, and share
.fatably IN the distribution of the
assets of the corporation.
The syllabus of the case follows:
Robert c., Kalkhoff and Annie w.Kalk.
non, appellants, vs.. B. f.. Nelson, as
receiver of James H. Bishop & Co,
respendent. Ordered reversed and a
? newstrial granted. start, &c. J. =
Syllabus-A corporation entered into
a lease with the appellants and there
by agreed to pay to them a stipulated
annual rent, in monthly installments.
for the use of the premises therein de-
scribed, for the term of ten years. Be
fore the expiration of the term the cor
poration was dissolved, under the pro
visions of General Statutes 1878, chan
ter 81, sections Ais to 400, inclusive. and
a receiver appointed, who declined to
accept the benefits and burdens of the
lease, and abandoned possession of the
premises.
Held, that by the dissolution, the
corporation was disabled from further
performing the obligations of the lease
on its part, and the breach of it's con-
tract to pay rent, for the uneXpired
term of the lease, became total and
final, and thereupon cause of action
Immediately accrued to the appellants
for the recovery of all damages, pres
ent and prospective, which they sus-
tanned by the loss of their contract.
Held, that the appellants are entitled
to prove their claim, for such dam
ages, against the receiver. and share
ratably in the distribution of the as
sets of the corporation.