The Saint Paul globe. (St. Paul, Minn.) 1896-1905, 1897-12-21

2. The answer stated defense.
.. The court did not abuse It's discretion
its complaint on trial. Order affirmed
Mitchell, ].
Two of the eight decisions were re-
versals. The first Of these was in the
case Of Caroline Lehman, respondent,
against Charles E. Chapel, appellant
The syllabus follows:
Where the vendor, with the consent Of the
vendee, remains in possession after sale, his
declarations while thus in possession tending
IN evidence as part OF the res gestae against
the vendee and in favor of the creditors of
the Vondor, who are attacking the sale as
fraudulent The same rule applies where the
vendee has ostensibly acquired title from a
third party. and the debtor has, with his
consent, taken and continued in possession,
and creditors are assailing the title of the
vendee as merely colorado and held in secret
trust. Order reversed.
The decision Of the lower court Is
also reversed in the case Of the Di.-
mond Iron Mining company, respond
ent, VS.. the Buckeye Iron Mining COM
pany, appellant. The story, as told in
the syllabus, is:
The plaintiff executed to defendant a lease
for term Of years Of certain lands for the
purpose OF exploring for mining, taking out
and removing the merchantable shipping ore
which Is or may hereafter be found on, in, or
under said lands. the defendant to pay the
plaintiff stipulated sum per ton, f1r all
iron ore mined and removed from the lands
during the term of the lease.
The lease also contained a covenant by the
lessee that he would mine and remove from
the lands at least a specific number of tons
OF ore each year, and that if he should fall
to mine that amount in any one year he
would pay to the plaintiff an amount, which.
when added to any amount previously paid
as royalty for ore mined during that year,
should equal the royalty on the minimum
quantity Of ore which he was required to
mine that year; provided, however, that he
year, without other payment therefor, a suf-
fcient quantity OF ore to Offset the amount
so paid in excess OF the quantity actually
mined during such preceding year.
The lease further provided that the lessee
might terminate the lease at any time on
sixty days notice to- the lessor.
By diligent and sufficient search and ex-
ploration on the part Of the lessee it was de-
monstrated that there was no merchantable
shipping iron ore on the land.
In an action by the lessor to recover the
minimum royalty.
Held: That "merchantable shipping iron
ore" was the subject matter Of the lease and
not mere matter of indueement to its execu-
ton.
Also that the covenant to mine a specified
quantity OF ore each year upon failure to
do so to pay the royalty upon that amount
imposed an obligation to pay for the stipu!at-
ed quantity of ore, whether mined or not
not whether it existed not; in other words,
itiwas not a covenant to pay royalty whether
the ore existed or not but one to pay the
royalty, IL the ore existed, whether mined or
not. Hence the non-existence OF, the ore was
a defense to an action TO recover the roy
atty.
The fact that the defendant had not exer-
cised It's right to terminate the lease did not
prevent 1t from awaiting itself of the defense
that the royalty had not accrued due.
The syllabi of the offera decisions fill
ed Yesterday were as follows.
Butler-Ryan Company, respondent. VS..
William B. Silvery Realty Co. ct al. ap
pellants.
Where there are numerous findings OF fact
and assignment of error that the decision of
the court was not justified by the evidence
and was contrary to law is insufficient to
raise the question Of the correctness Of the
findings.
Where a building contract provides for the
owner giving time notes for part Of the con-
tract price. which by their terms will not al
ture within the time allowed by statute for
commencing an action to enforce mechanics
Zen, but the contract expressly provides that
the taking of such notes shall not be con-
strued a waiver of the right of the con-
tractor. to impose or enforce a statutory lien
en- the property. Held that the taking of the
notes in accordance with the contract does not
waive suspend the right to enforce the
lien against the property The note WILL un
der the circumstances. be dsemed as merely
collateral to the right Of lien.
Order affirmed. Mitchell, ].
Joseph Hagemeyer ct al, appellants, vs. vii
lage of St. Michael, respohdent.
1t is not error for the court to refuse to
grant a temporary injunction against alleged
threatened acts Of treSsass on land when the
defendant both by answer jand affidavit DIS
claims any right to commit the act and posi-
lively denies that he ever intended or threat
ened to commit them.i liz
Order affirmed. D. Mitchell, j.
John Birmingham, resRendent. vs.. Duluth,
Missabe & Ncrthernt Railway Company ap-
pellant. 80 ~
In an action to recover for personal injuries
caused by the alleged negligence of the de-
PENDANT Held that tee complaint was not
demurrab!e on the ground that it did not
state cause of action, In that 1t appeared on
it's face that the plaintiffs injuries were
caused either by his own negligence or by that
of a fellow servant.
Order affirmed. Mitchell, J.
Lewis Amsns, respondent VS.. o. H. Campbell
and the McCord Lumber Company appel
liant.
Rule soplied that person acting as agent
for another will be personally responsible II
at the time of making the contract in his
principals behalf he fails to disclose the fact
of his agency.
person named o. H. Campbell in making
a contract in relation to a business of which
he had the exclusive and entire management
and control used the name of Campbell &
Co." but without indicating in
any way that he did as
agent for another person or hrm do
ing business by that name. 1t did not ap-
pear that there was any other person, or firm
composed of other persons. generally known
in the community as doing business under
that name.
Held that the mere use of the name Camp
bell g. Co." did not amount to disclosure OF
his agency for his wife, Della Campbell. do
ing business under the name OF Campbell &c
Co."
Order affirmed. Mitchell. j.
Samuel C. Martin. appellant. VS.. John ]. Cur
ley. RESPONDENT.
Held that there was no abuse OF discreet on
in vacating a default judgment and granting
the defendant leave to answer.
Order affirmed. Mitchell, j.