The Saint Paul globe., 1897-06-08
THEREON RHVERSEs A LOWER
HULIEG.
EVIDENCE. WAS 4N0T ENOUGH,
1T BELIEVES, WARRANT THE
JUDGMENTg WHICH WAS
THERE GIVEN.
LAW IN INSOLVENCY CASES
Is Also Laid Down in "a Pine County
Case Involving n school Build
ing.

ing.
One reversal stood alone among the
six decisions that were handed down
In the supreme court yesterday signed
by Chief Justice Start, This was III
the case of the Merchants Insurance
company, appellant, VS.. w. S. Herber
ct al, defendants, and w. H. Wright
respondent
Herber was the agent for the insur-
ance company in Minneapolis. His ap-
polntment as sole agent dated from
May 1, 1898; prior to that time he had
been in partnership with one Wilson,
and together they had been agents for
the company for a number of years.
1t appears that they were indebted
to the company for premiums collected.
When Herber retired as the agent of
the company in October, 1894, he was
still Indebted to the company $S91.2l,
and the company went after the bonds
! men, of whom Wright was one.
Wright fought the case, and claimel
that the money Herber had collected
and paid to the company during the
! time he was on Herber's bond had been
applied on the payment of back debts,
and demanded that it be applied OH
the debts for which he was liable as
bondsman, because it had been earned
and collected during that time. The
company contended that the general
rule providing that surety cannot
direct the application of payments
made by his principal and that he is
bound by any application made by the
principal and the creditor or either,
applied to this case. The lower court
SO ruled
The syllabus Of the supreme court
decision, however, is:
Merchants Insurance Company, appellant, VS..
| William S. Herber, ct al, defendants; w. nj.
Wright, respondent.
l. 1t is a generalsrule that a surrey cannot
direct the application of payments made by
his principal, and that he is bound by any
app icat en- m lde by the priI cifal nd he e.
tor or either.
2. This rue applies only to cases where
the principal makes the payment from funds,
which are his own, free from any equity in
favor Of the surety to have the money ap-
piled in payment Of the debt for which he is
liable.
3. Where the specific money paid to the
creditor and applied on debt of the principal
for which the surety is not bound. is the very
! money 1Or the collection and payment OF which
he is surely, he is not bound by such appli-
cation, and is equi ably entitled to have the
money applied to the payment of the debt
for which he is liable, unless the creditor
! shows superior equity to have the applica-
| tion as made stand. 80 az y
/ 4. Where payments have b;ea applied by the
| agreement express or implied by the cred
| itor and the principal the burden is ,upon the
surety to show that the application is ineuuit-
! able as to him. r.f.i ,:-ss. =.
! g. Evidence considered and heidB that it
was net sufficient to support the verdict her5in
Order reversed. s. art, &C. j.
The Minneapolis Trust Company as assignee
of Martin Ring, insolvent, appellant. vs.
Schoot District No. 5, of Pine County, Minn.
respondent.
An assignment for the benefit of creditors
| by debtor as authorized by the insolvency
| law of the state, G. S. 1894 section 1910 must
| be his personal act; he cannot delegate to an
agent, by power Of attorney OF otherwise au-
-thorty to decide for him the question Of his
insolvency, and 10 select an assignee, and
make such assignment for him, at the pleas
ure of such agent The debtor must exercise
his personal judgment as to such matters.
Order affirmed Start, G. j.
| Charles B. Parker appellant, VS.. John Brad
! ford, respondent.
Where the affidavit and complaint, in re-
| plevin, in justice court state the value of
| the property at 500 less, the justice ac-
| quires jurisdiction to proceed and dispose Of
| the case on the merits, though the value is in
| fact more than SlU0 unless the defendant as
| he may do, pleads and proves in bar to the
! jurisdiction the fact that the value exceeds
the jurisdictional limit. But pleading the fact
alone does not oust the justice of Jurisdiction
| The fact must also be proven and determined
! in favor of the defendant; when this is DONE
! the Jurisdiction theneeforth and not before
| ceases for all purposes, except the entry of
| the statutory judgment OF dismissal in re-
| pleyn cases.
| 2. Evidence herein considered and held to
| be substantially conclusive that the value of
| the horse in question exceeded $1G0.
| Judgment affirmed. Start, C. J.
Fred Pell respondent, VS.. Matthew C. Burke,
appellant.
Evidence considered and held that the find
| ings of the referee herein are sustained
| by the evidence Order affirmed.
Start, C.,J
Lizzie H. Francois, respondent, VS.. Robert
| G. Lewis, appellant.
banking corporation, organized under the
general laws of this state, has the power
| to make interest bearing time certificates of
| deposit. Order affirmed, Start C. ].
John Wester, respondent, VS.. Andrew c..
Hedberg ct al, appellants.
L. Evidence considered and held that it
sustains the verdict.
q. Held, that the affidavit of Juror Of
fered for the purpose Of impeaching the YER
dict herein by showing misconduct on the
part of the jury was neither sufficient nor
admissible for such purpose
3. Held, that the trial court did not abuse
It's discretion in denying a motion for a new
trial on the ground that the defendants were
surprised by the testimony of witness called
by them. Order affirmed. Start c. J,
Bernard Silberstein, as Silberstein & Bondy
and D. d. Crowley, under the firm name of
Crowley Electric Company, respondent vs.
The Duluth Eews-Tribune Company, appel
liant.
/. Where the performance of a special con-
tract involves the furnishing of both material
and labor, and the contract is entire and the
breach total, loss of such profits as would
have accrued from the contract as the direct
result of its fulfillment may be recovered in
an action for breach thereof
2. Such profits may be proven by showing
the difference between the contract price and
what it would have cost to have performed
but no infiexible rule as to how such cost
is to be ascertained can be laid down. for
the profits must be determined according to
the circumstances of each case and the sub
ject matter Of thescontract
3. The plaintiffs herein agreed to furnish
wire and set up for the defendant a second
hand arc motor tos be as good as new for a.
stipulated price. They purchased, to enable
them to perform the contract in an outside
market a secondhand motor changed and
refitted it to make it conform to the terms
of the contract, and were ready to set 1t up
when the defendant repudiated the contract
Held, that the trial court did not err in re-
ceiving evidence OF the actual amount paid
by them for the motor and the materials and
labor necessary totreit and set 1t up as a.
basis for ascertaining the profits they would
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