The Saint Paul globe. (St. Paul, Minn.) 1896-1905, 1896-12-29

gave Tuttle preferential security,
voidable under the insolvent law. The
assignee sued on the ground that the
transfer was a wrongful conversion Of
the assets of the insOlvent, Page. Then
Hay wanted to change and sued to
set aside the transfer The majority
of the court hold, that the defendant
having been brougt into court in one
action, cannot be subjected to another
when the first has failed through the
neglect of the plaintiffs to properly
make out a case.
John Hay as assignee of Frank H. Page, re-
spondent, VS.. Edward o. futile, appellant.
The acceptance by a creditor from his
debtor of a preferential security, voidable I'M
der the insolvent law, does not constitute
wrongful conversion.
In the absence of prior wrongful CONVEX
sion the assignee in insolvency has no cleo
| ton to sue for the value of the property; fol-
lowing Clerihew VS.. West Side Bank, 80
Mimi, 53S.
In his complaint the assignee alleged facts
constituting a voidable preference that he
had demanded of defendant a return of the
property which was refused, and asked for
judgment for its value. The defendant be-
ing a nonresident plaintiff also caused an
attachment to be issued and levied his
property in this state. The defendant ap-
peared in the action and answered DENYING
that the transfer of the security was an I'M
lawful preference, and also denying that any
demand had ever been made on him for the
return OF the properly. On the trial the
pla1ntlH failed to prove demand on defend
ant or any conversion Oh the property by
him.
Held Start, C. j., and Mitchell, j., dissent
lng), that plaintiff having thus compelled the
0etenQanu to appear for the purpose of de-
Tending his property in an action ostensibly
for conversion, it would be a breach of com
lty, amounting to a fraud him. to permit
the plaintiff to change front and treat the
action as one to set aside the transfer for
the recovery of the property. Order re-
versed Mitchell, J.
Still another decision of interest to
debtors is stated concisely in the fol-
lowing syllabus:
Charles l. Fall. appellant vs. Clarion A.
Youmans and Julia S. Rodman, respondents.
The defendant transferred to the plaintiff
and guaranteed the collection Of promissory
note executed in Wisconsin, of which STATE
the maker was a resident at the time the
note was executed Before the maturity of
the note the maker removed from the state
CT Wisconsin and became q resident of the
state of Illinois. Held:
t1rst-That if the maker had continued to
reside in Wisconsin the plaintiff would have
required to proceed against him in that state
or prove that such proceedings would be
wholly Ruthless before pursuing the de-
den n on his guaranty. The fact that the
teral 40 Ho' n1o-
Second-But that the plaintiff is not bound
W r noii9" me maker into the state of illinois,
1nIru-Ihat the burden is on the defendant
10 prove that the maker has property in Wis
consln out Of which the note might he col
Iecteu IN whole or in part, and not upon
versed. 1"' M Wit ElGer re-
justice Mitchell had a rather curious
case In the damage suit of Robert Nor
us against the Great Northern Rail-
ROAD company. 1t appears that Morris
Mno had neen injured, relinquished his
claim against the company for a con-
slderation, and no notice was given
the company that he was of unsound
mind Afterward he disaffirmed the
contract, but failed to return the con-
slderat1on he. had received for making
II: Inc supreme court in a reversal
OF the order of the lower court. holds
Leu Ihe person OF unsound mind must
aIler reasonable time after recover
ing MS mental capacity elect whether
ne VIII adhere to the contract or dis
aAllrm II, and In the latter case must
return the consideration received for
executing it in the first place.
i'o oDt7 motifs respondent VS.. Great North
e e railway Company appellant
Where an executed contract has been made
III gooo 1alth, for valuable consideration
anu without notice of the insanity, with a
person VINO is OF unsound mind (blt where
snere mas been no inquisition and finding If
lunacy), the latter must elect within reason
ape time after regaining his mental capacity
whether he will affirm or disafirm the COW
tract, and if he elected to do the latter he
must return the consideration which he has
f fect ed This rule is not changed by the
! -'SON ZIG COulTdcC Was made and he
consideration paid by the other Marty foU
the benefit of third party -0
Rule applied to a settlement and release of a
claim for personal injuries. Order reversed
TIL, Mitchell j.
The syllabi of the other decisions are as
follows: GIN 9S
State ex rel, Surety Trust Co., petitioners VS..
Probate Court of Rock County, Minnesota
and Hon. James Marshall, Judge Of said
court, respondent.
Held that the probate court erred in refus-
10
against the estate of the deceased after the
expiration of the time limited for the pres
entation OF claims. Order reversed.
Mitchell, ].
William A. Anderson, respondent, VS.. c. N.
Nelson Lumber Company, appellant
evidence considered and held to prove con-
clusively either that plaintiff was guilty Of
contrtbutory negligence or that he had vol
unfairly assumed the risks which resulted in
/ his injury. -
A servant has no right to neglect to exer-
/ else ordinary care for his own safety against
open and patent dangers discoverable by the
| use OF his senses, upon the assumption that
| the master has done his duty.
The mere fact that a duty is imposed bv
statute does not change the rules of law as
| to contributory negligence or the assump-
| ton of risks Order reversed.
Mitchell, J.
D: S. Wemple. appellant, vs. Northern Da-
kota Elevator Company, respondent
The complaint herein alleged that the plain
| tiff sold and delivered at French, this state
! to the defendant a quantity of wheat for
which it agreed to pay at any future time
when demanded the then market price of
| wheat Of the same grade at Duluth or Min
! neapois. less 10 cents per bushel Held that
| certain correspondence between the parties
| did not establish such contract. Held fur
| Their that the trial court did not err in dis
missing the action on the ground that plain
tiff failed to prove such contract. Order
affirmed. Start G. 7
Alva w. Bradley. respondent. vs. Michael
| Norris ct al. defendants; Michael Norris
and Mary Norris appellants.
1. Held. that the decision and Judgment of
this court on q former appeal in this case
constitute the law of the case on all points
In judgment, and that no questions that might
have been raised on such appeal can be con-
| sidered on an appeal from a Judgment en-
| tered pursuant to the mandate OF this court
! on the former appeal.
IA party seeking a new trial on the
/ ground Of newly discovered evidence must
show that Re could not have discovered
tie evidence and produced 1t on the trial
by7aa1y reasonable diligence on his part
| Strict proof must be made on this point
/ and facts. not conclusions stated in the NOV
! ing afidavits from which the court may