The Saint Paul globe., 1897-07-10

and disposed Of Order affirmed.
Collins, ].
Commercial Bank of st. Paul, respondent,
VS.. Azotne Manufacturing Company ct al,
defendants James G.. Donnelly, appellant;
Anchor Investment Company ct al, re-
Spondents
Held, that, by virtue of the decision of
this court, So N. W., 217 made on former
appeal herein, which was from an order deo bo
had the right on the case being renamed
to move the trial court for further hndlng
of fact as to question for further consldo
Grafton, but having omitted to do so, ne
cannot this appeal from the judgment,
raise the question that the finding on the
particular question as originally made is not
sustained by the evidence, nor that 1t was
such as to require the trial court to find GER
tain additional facts. Judgment affirmed.
Start, c. j.
Little Falls Water Power Company of Min
nesota, respondent, VS.. Henry Belin Jr,
appellant.
In an action to declare a forfeiture of a
deed, sin which was a condition subsequent
and to eject defendant from the premises
in which the court below upon findings OF
fact based its conclusions of law that plant,
iff was the owner of the land, was entitled
to and should recover possession with $500
damages for their detention, judgment being
ordered accordingly. Held, that the findings
were supported by the evidence and justified
the conclusions of law except as to damages.
Held, that there no evidence which
would support the findings that plaintiff de-
manded possession of the premises from
defendants more than three years prior to
the commencement of action, or at any time
prior thereto. And that there was no evil
dence and no finding upon which to base a
conclusion of law that plaintiff was entitled
TO Judgment for anything more than NOM
inad damages for a detention of the prem
ises.
8. A deed upon condition subsequent con-
veys the fee with all its qualities of trans
mission Notwithstanding breach of the
condition the estate continues in the grantor
until defeated by actual entry or by some
act equivalent to entry at Common law, made
for the purpose of claiming a forfeiture by
some one having a right to terminate the
estate. Modified. Collins, J.
State Finance Company, respondent, vs.. The
Commonwealth Title and Trust Company,
appellant.
Defendant and another corporation entered
into contract by which the latter was to
deposit and The former was to hold in trust
certain securities for the benefit of the
owners and holders of certain debentures
which were to be issued and sold by the de-
poS.tor OF the securities. Among other Sc
curIt.es deposited was real estate mortgage
with the note and interest coupons thereto
attached. The mortgage absolutely as
signed to defendant by the depositing cor
porat1on, mortgage, and it also guaranteed
the payment of the note and each of the
coupons upon the backs thereof. 1t was
stipulated in the contract that as long as
interest was paid upon the debentures the
to collect all interest as it matured upon Its
securities, and in conformity with this stipu-
lation the trustee delivered up the coupon
which fell due at the maturity of the note
retaining possession of the latter and of the
mortgage. The depositCr did not collect the
interest. and soon afterward became insol-
vent fatled to pay interest upon its deben-
lures and went into the hands of receiver.
The trustees then foreclosed the mortgage
and at the sale bid in as trustee the prop
erty for an amount due the note with
mo atIIriS o,,1 r. l.,l
notice that the coupon was unpaid, and did
not take into account the amount due there
on at any time during the foreclosure pro-
ceedings or at the sale. The property was
not redeemed. and thereafter the receiver
sold and transferred the coupon to this
plaintiff. Held, in action brought to en-
1orce an alleged equitable interest in the
property in the proportion that the amount
due on the coupon bore to the amount due
on the note when the sale was made, that
tne complaint in which these facts APP
peared did not state facts sufficient to con-
stltute cause of action. Order reversed
Collins. J.
Frederick Hughley. appellant, vs. City Of Wa
basha, respondent.
Where a motion for new trial on the
ground of the insuffieiency of the evidence
other than the one who tried the cause it
is his right and duty to exercise the same
discretion in determining whether the mo-
tlon u should be granted as If the cause had
qualification that such discretion must be
exercised entirely with reference to the evil
dence disclosed by the record as he can
know nothing else as to what occurred or
appeared at the trial.
If in such case the judge grants a new
trial, In determining whether or not he
abused his discretion, this court will apply
the rule in Hicks Stone, having in mind
however, that such discretion must have
been exercised exclusively upon what the
record discloses.
Certain narts of tho ohor1a +bo oo,,r+
held to have been, under the evidence, in
accurate and misleading upon the subject of
the degree of care which the defendant owed
the plaintiff as its servant. Order affirmed.
Mitchell, J.
John Lundberg, appellant, VS.. A. D. David
son, assignee, ETC., respondent.
A set-cf of one judgment against another
is not demandabe of right, but is discre-
uonary with the court, and will be denied
when the court, in the exercise of it's dis
erection, can see that an injustice will be
done by granting it.
This rue is not changed by G. S. 1894
section 6194, which provides that attor-
ney's lien on judgment shall be subordinate
to the rights existing between the parties to
the action. Motion denied. Mitchell ].
William Hamel, respondent VS.. Thomas G.
Corbin, appellant.
1. A mortgage paid the taxes on the mort
gagged premises before he commenced pro-
ceedings to foreclose by advertisement but
amount claimed for taxes paid at the date of
the notice. His mortgage authorized him, in
case of its foreclosure to deduct from the
money arising from the sale all sums paid
by him for taxes, and in his notice of sale
he stated that the premises would be sold
to pay the principal and interest of the
mortgage debt, and any sums paid for taxes
or insurance. He was the purchaser at the
sale, and included in his bid the full amount
of his debt, including the sum paid for taxes
and insurance. Held, that he was entitled
tO ataj Of he tha
amount of the taxes so paid.
2. On the morning of the sale he paid the
premium for insurance on the premises COW
ering the period of redemption, but it not
appearing that such insurance was for the
benefit Of the mortgagor as well as HIMSELF
held, that he was not entitled to retain the
amount paid for such insurance from the
money arising from the sale Order reversed.
Marcus Maurin ct al, appellants, vs. D. E.
Lyon executor of the estate of George
Tileston, deceased, ETC., respondent.
Where written contract contains char
acters abbreviations, or apparently aInbig-
uous terms, parol evidence is admissible to
show that they have a recognized and gen
orally understood meaning in the trade or
business to which the subject of the contract
relates. Such evidence does not vary or add
to the writing, but mercy translates 1t from
the language of the trade into the language
of people generally.
A memorandum of contract for the sale
of goods held to comply with the require
ments of the statute of frauds.
Held that there was no evidence to Justify
finding that certain transaction made by
one partner in the name of the firm was
within the scope of the partnership busi-
ness. Order reversed. Mitchell, j.
FORM OF THE ORDER.
Judge Lochren Hears Attorneys on
Duluth & Iron Range Case.
Judge Lochren, in the United States