The Saint Paul globe. (St. Paul, Minn.) 1896-1905, 1897-04-27
is SOMEWHAT SIMPLIFIED By THE
ORDERING OF NEW
TRIAL.
SEVERAL IMPORTANT
CASES
Are Embraced in the Other Dozen
Decided by the States Highest
Tribunal.


pany, of Van Vert, Ohio, on the
ground that the court below instructed
the jury incorrectly, as to the effect of
certain evidence.
The case has excited a good deal Of
interest in the business circles of both
cities 1t appears that prior to Dec.
10, 1895, the Smith Lumber company
had carried $4,000 insurance in line
of companies represented by the Shove
agency, Of which the Central Manu-
facturers was one. Dec. 6 of that
year, the lumber company called in a
representative of the Shove agency
and asked for $4,000 more insurance
on the plant. stating that some addi-
tons had been made to the buildings.
The agent not only refused to write
the additional insurance, but served
notice that the line of policies already
on the plant would be Cancelled Dec. H.
five days later.
At noon on Dec. 10, the lumber COM
pany closed a verbal contract with
the Belknap agency for $751; insur-
ance on the plant. That same night
the plant of the lumber company
burned. All the companies in the Bel
KNAPP agency paid their prOportionate
claims, but on the basis that the ST.
600 carried in the Shove agency was
still in force as concurrent insurance.
On the afternoon of December 10
there had been some conversation be-
tween the representatives of the Shove
agency and the agent Of the lumber
company regarding the policies, and
the insurance companies in this suit
claim that it was agreed that the po-
licies in the Shove agency should be
Cancelled then and there, as the desir-
ed $4,000 of insurance had been secur-
ed from the other agency.
Peter Hanson, respondent, VS.. Gaar, Scott &
Co., appellants.
l. Upon the second trial of an action
brought to recover damages for an alleged
breach of an agreement fully set out in a
former opinion of this court, 63 Mimi. "a
the court charged the jury that if plaintiff
was entitled to recover, the measure of dam
ages was the difference between the value
OF the separator as it was when the agree
ment was entered into and what it would
have been had defendant complied with the
terms and conditions of such agreement
Held that as an abstract proposition this
part of the charge was correct, and that the
court did not err, in the absence of any re-
quest that it be explained or enlarged upon,
counsel as to any other rule applicable to
the facts. Held also that the correctness of
the charge upon this point cannot be ques-
toned under assignment that the court
erred when instructing the jury that the
measure of damages was what the machine
would have been worth if it had been as
warranted
q Certain other unimportant assignments
of error considered and disposed Of.
Collins ].
James c. Tarbox appellant, VS.. Frank Cruzen
ct AL, respondents.
Held, that the court below erred in sub
hitting to the jury as a question Of fact
the construction to be placed on a certain
written contract. Collins, j.
NJ. j. Azure, respondent, VS.. Board of County
Commissioners of Becker County, defend
ants, respondents, George D. Hamilton, ap-
Rule laid down in Du Toit VS.. Fergestad, So
Mimi. 462 as to the sufficency of a return
on appeal, applied and the order appealed
from affirmed. Collins, j.
John H. Lee respondent, VS.. Chicago, St.
Paul Minneapolis & Omaha Railway Com
pany, appellant.
In an action to recover for personal in
juries received by plaintiff and for damages
done to his property, in a collision be
tween his horses and wagon and one of de-
evidence to the defendants negligence
was insufficient to support the verdict in
plaintiffs favor. Order reversed.
Ed s. Bean. assignee of F. X. Peyer, insol-
vent, respondent, VS.. Alfred Scheffer ct al,
appellants.
l. In an action brought by assignee in
insolvency under the laws Of this state to set
aside a sheriff's certificate of sale of real
property execution and the lien of the
judgment under which this execution was
issued. on the ground that the judgment. OBJ
tanned by default for want Of answer,
unlayful preference under the statute, the
court found that when the creditors COM
menced the original acton the debtor knew
he was insolvent that the creditors knew
him to be insolvent, and that the debtor well
knew that the action was commenced aga. n st
him for the purpose of enabling the cred
itors TO obtain an unlawful preference, and
that, for such purpose he willfully permit
ted the judgment to be obtained and dock
evidence to base the finding that the debtor
well knew that the action commenced
to obtain an unlawful preference or that he
wilfully suffered the judgment to be obtained
for such purpose.
. This case upon the facts dis :ngu.shed
from Vanish VS.. Pioneer Fuel Co., 60 Mimi.
321.
8. 1t cannot be held as a matter of law
that because technically insolvent merchant
or trader suffers an action to be commenced
against him upon a claim, against which he
has no Defense by creGf ors who know him
to be technically insolvent, and allows a
Judgment to be entered and docketed against
comes a lien upon real property, that the
debtor intended TO premit the judgment cred
itOrs to obtain unlawful preference. Judg-
ment reversed. Collins j.
Ida NJ. La Plant, respondent, vs. The Fire
mans Insurance Company of Baltimore ap-
pellant.
BY denying, in an answer, any liability for
loss under an insurance policy, the insurer
does not waive its right to plead in abate-
ment that under the terms and conditions of
the policy as to payment the action has been
prematurely brought. Order reversed.
Collins, J.
George Williams, respondent, VS.. Great North
ern Railway Company appellant.
Whenever bodily suffering is material to
be proved, expressions or Complaints, made
at the time, which are the natural and in
stinctive Manifestations of pain and suffering
are competent evidence as part of the res
gestae, and may be testified to and described
by any person in whose presence they were
uttered. Distinction noted between such COM
paints and the mere narration of past synlp-
toms or simple descriptive statements which
furnish DO evidence of the existence Of suf-
fering except the assertion of the party.
Former decisions of this court on the cues