The Saint Paul globe. (St. Paul, Minn.) 1896-1905, 1897-11-11

was that which fixes the damages for
being put off a train.
One day last year Albert R. Klleven
rode to FoSSton, on a Great Northern
train, and went out in the country to
visit his claim. He had a return ticket
in his inside pocket when he got off the
train, and started for the country. He
was caught in heavy rain storm, and
the evidence says that both he and the
ticket were thoroughly soaked.
When he boarded the train to return
home, and presented the slip, the dates
upon it were so indistinct that the con-
ductor refused to accept it, and order
ed him from the train, threatening him
with force, if he did not get off vOlun-
tarily.
Kleven made the best Of the situa-
ton; that is, he bought another ticket,
loafed about town all day until the
evening train came along and rode
home on that. Then he sued the COM
pany, and obtained a verdict in the
lower court of 1925 damages, because
it was shown that the ticket had not
been properly stamped by the COM
pany's agent in the first place, and the
soaking he had received had done
neither him nor the ticket any good.
The syllabi of the decisions of yes
terday are as follows:
Albert II. Kleyen, respondent, VS.. Great
Northern Railway Company, appellant.
Plaintiff, a passenger on defendants train,
was Wrongfully elected therefrom because of
certain suspicious defects in his ticket the
ticket was in fact valid, and appeared on its
lace to be, but there was no evidence which
would warrant the jury in finding that in
ejecting him the conductor acted malicious
Iy or with any such wanton disregard of
plaintiffs rights as would justify any award
of punitive damages; he elected in the
morning without force, purchased a ticket
and rode to his destination on another train
the same evening.
ejectment is excessive, and the highest
amount for which the verdict can be allowed
to stand is $l25. Order modified.
In re estate of Henry W. Carter, deceased;
F. e. Rice, administrator of said estate, re-
spondent, VS.. The London and Northwest
American Mortgage Company, limited, ap
pellant.
An agreement to accept a less sum in sat
1sfacton of contingent or uncertain claim
for a greater sum, is not without considera-
ton.
1t being supposed that the estate of the
inteState was insolvent creditor CWhose
claim reduced to Judgment accepted an
amount less than his claim in full satisfaction
thereof.
Held, there was sufficient consideration for
such accord and satisfaction, even though it
turns out that the estate is not insolvent. Or
der affirmed. -Canty, j.
Mary A. Banning and Henry ]. Horn, as
trustees, etc, respondents, vs.. Nels Hall,
appellant
/. In an action in which jury trial is
not matter of right, it is discretionary with
the court whether or not it will submit issues
to the jury.
Where a party is entitled to jury trial,
he valves it by failing to demand it when
the case is called for trial and by proceed
ing to trial without objection before the court
without a jury.
@ 1t is a question of fact for the jury
or trial court, whether or not transaction is
usurious in which money is loaned and prop
erty sold by the lender to the borrower
for more than it is worth, so that the lend
er's profit or advantage from the transac-
ton exceeds the legal rate of interest on
the money loaned whether or not the tran
saction is tainted with usury depends on
the purpose and intent of the parties; held,
in this case the evidence SustainS the de-
csion that the transaction is not usurious.
8. Evidence that at the time of the tran
saction, the owners of similar property in the
vicinity of the property in question, generally
asked more for their property than the price
for which the property in question was sold;
held admissible as tending to prove that such
vendor and lender believed that the prop
erty was worth the price for which he sold It,
4. The value of the property so Sold the
price for which it could be sold for and the
knowledge or belief Of the parties as to these
matters, held to be mere evidentiary facts
not conclusive of the case, and it was not
error for the court to refuse to make ad-
ditional findings as to any or all all of the
same.
5. it is proper for the court to refuse to
make additional findings in conflict with the
findings already made. Order affirmed.
-Canty, j.
Edward D. Davis, respondent vs.. Tribune
Job Printing Company, appellant.
When the bailor proves in an action for
conversion that the bailee failed or refused on
demand to deliver the goods, the burden is
thrown on the bailee to prove not only the
loss of the goods but also that he exercised
s sue b eIT9 M reepired him to exercise.
Held in this case the bailee did not main
tain the burden thus cast upon 1t. All the evil
dence as to the amount of plalntln damages
not being returned the question whether or
not the verdict is excessive cannot be passed
upon. Order affirmed. -Cauty, D.
Moses Hooper, appellant, VS.. Charles Z. PIKE,
An extension of the time of payment is suf-
fcient consideration for the promise OF
third party as surety to pay the debt.
After a surety has been released by an ex-
tension of the time of payment to the prin-
cipal debtor, the liability of the surety may
be revived by his new promise to pay or by
his absolute and unqualified acknowledge
ment of the existence of the debt when I'M
plies a promise to pay, at least II such
new promise or acknowledgment is in writ
ing. Order reversed. -Canty, j.
c. N. Mclaughlin, administrator of the es-
tate of William Wording deceased, re-
sopndent VS.. Charles Betcher ct al, ap-
pellants.
J. Held, a party cannot complain that the
Judgment entered by the clerk is more favor
able to him than that ordered by the court.
but, even if he could, he would have to apply
to the court to make the Judgment conform
to the order before he could review the judg-
ment on appeal.
2. In an action to foreclose a mortgage
the defendant, c.. B., claimed an adverse
title prior and paramount to that of the
mortgagor; judgment was ordered and en-
tered barring and foreclosing the defendants
ises, except a right to redeem.
Held this judgment barred such adverse
interest and was therefore erroneous. Judg
ment modified. -Canty, j.
Genevieve G. Wells. respondent, VS.. Sarah A.
Penfield, appellant.
Held, under section 6164, General Statutes
1894 an attorney has, in an action pending,
authority to stipulate for judgment against
party is not guilty of fraud, collision or bad
faith in entering into the stipulation with
such attorney, the court, by reason of the
large equitable powers which it has over
its own proceedings, may, in a proper case,
set aside the stipulation on the ground that
the same was improvidently made, or ought
not in equity or good conscience, to stand.
But held, in that case the order setting
aside the stipulation IS in the nature of re
in statu quo, and if such opposite party has
paid money to such attorney for his client
in consideration Of such stipulation, 1t is
error to set the stipulation aside except on
condition that the money be repaid Order
modified -Canty, ].