St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1895-04-23
REVERSED BY CAVITY
Order Of a Hennepin Judge in
the Case Between the AS
signees Of
TWO MINNEAPOLIS BANKS
TO Rec over on Notes Is Re
versed by the Supreme
Court.
ERRORS IN PROCEEDINGS
Found by the Court, and a
New. Trial Is Granted
Other Decisions.
ERRORS IN PROCEEDINGS

OF the six decisions handed down
by the supreme court yesterday, the
most important case is that OF Will
lam ]. Hahn, as assignee of the
State Bank of Minneapolis, respond
ent. VS.. r. L. Penney, as assignee
of the American Exchange bank, ap-
pellant, in which the order of the
lower court is reversed and new
trial granted. On June p, 1893, the
State bank closed it's doors, and at
the time it was indebted to the EX-
change bank to the amount OF $685.
236. The latter bank closed about
July 1 following, under the insolv-
ency law, but in the meantime the
State bank had conveyed to the
American Exchange notes amount
ing to $3S, 972 to hold as collateral Sc
curity.
This action was brought by the
assignee of the State bank against
the Exchange bank to recover back
said notes or proceeds thereof on
the grounds that delivery of the
notes to the Exchange bank as col
lateral security was an unlawful
preference under said law. Several
errors in proceedings are found by
the court, and in consequence the
order appealed from is reversed and
new trial granted.
The syllabus and title follow:
William ]. Hahn, as assignee of the
State Bank, respondent VS.. r. L.
Penney, as assignee of American Ex-
change Bank, appellant.
1. Held, the findings of fact are sup
ported by the evidence.
2. Certain statements of a third
party held to be mere hearsay and not
competent evidence.
g. In a suit by an assignee of an in
solvent debtor against a third party,
the schedule of liabilities of the in
solvent debtor on file in the insolvency
proceedings is not competent evidence
against such third party to prove the
Indebtedness of the assignor.
q. That a bank was reputed in finan-
cial circles in the city in which it was
dong business to be solvent. is COM
petent evidence of its solvency, and
also competent evidence tending to
prove that a third party dealing with
1t dld not know, or have reasonable
cause to believe that it was insolvent.
.. The opinion Of witness who has
examined the affairs of a corporation
is not competent to prove its solvency
or insolvency.
Order reversed. CAVITY, j.
JUDGMENT NOT SUSTAINED
Gustave MARITIME, appellant, VS.. Nels
Christensen ct al, respondents.
Evidence held sufficient to warrant
the reformation of the deed, and there
lore to sustain the judgment ordered
for the defendant.
But, held the findings of fact made
In this case do not sustain such a
judgment.
The rule applied that a written con-
tract cannot be reformed on the ground
that by reason of mistake it does not
express the true contract of the mar
ties, unless it is found that the mistake
Is mutual, or that the alleged error
occurred by reason of the mistake of
one party and the fraud of the other.
The court found such mistake as TO
one party, but not as TO the other. held.
from the other evidential facts found
by the court as recited in the opinion
1t cannot be held as a mere conclusion
of law that there was such mistake or
fraud on the part of the other party
Order reversed and a new trial grant
ed. CAVITY
ACTION FOR FALSE WARRANTY.
Swan Gustav Carlson, respondent, VS..
John r. Segog, appellant
Held the action is one to recover
damages for false and fraudulent
warranty, and the Municipal Court of
Duluth has jurisdiction.
Held there was sufficient evidence
to sustain proper findings for plain
tiff, but,
Held the trial court did not find any
facts from which the amount of plain
tiff's damage appears, or any facts
which would entitle him to recover
anything more than nominal damages.
Rule applied that contract cannot
be rescinded unless the parties can
be placed in statu quo. Order reversed.
CAVITY, j.
DEFENDANT NOT LIABLE.
Francis J. Erskine, appellant. vs.
An action was brought against the
defendant for damages for personal
injury, caused by the negligence of
his servants in operating his railroad
he appeared and answered by his at
torney, who gave plaintiff leave to
amend his complaint, plaintiff amend
ed by charging defendant as receiver
OF railroad company, and as operat-
ing said road as such receiver under
the order of the court, and charged
that such injury was caused bv the
negligence of his servants in so operat-
ing the same; the amended complaint
was served on said attorney. who adj
mltted due service of the same and
within three days moved to strike ont
the amendments,
Held, the motion was properlv grant
ed.
That the defendant was not liable
In his individual capacity for the neg
ngence of servants employed bv him
as such receiver;
mat the amendment really amount
cd TO an attempt to substitute one de-
PENDANT for another, and,
That it could not be presumed that
oeIendants attorney had authority to
consent to such substitution or to an
pear for the defendant in his capacitv
as receiver. Order affirmed.
CAVITY, J.
JUDGMENT PROPERLY ORDERED
White Sewing Machine Company. an