The Saint Paul globe. (St. Paul, Minn.) 1896-1905, 1902-07-04

That ~ Say WIN interest
plant DO not estop defandants from dis
putting their liability as subscribers to
such tund. Order affirmed.
Brown, ].
statS sx rel Barber AsphaltsPaving Com
Sardy, A1Sr pRBeRIiagna}'t vs. Joseph J. Nc
hafn, street paying Contract entered INTO
pelWsen private corporation and the
P Poalo OF PUZZLE works q the city Of ST.
n - tne completion OF the contract within
me specified period Of time There were
o oeiasys, put they Were, not caused by any
work was eo@ e f e iiba e sstaac Hhe
OF the board, and was accepted by 1t and
an estimate made for final payment. The
,,1s comptroller refused to audit the esti-
mate, claiming that a deduction should
pc MADE on account of the delay, and
making such deduction himself. The
common council, after hearing, allowed
subsequently by resolution waived and
released the contractor from all claims
LOT oeduct1ons on account of the delay.
The comptroller again refused to audit
the estimate or demand. Held in man
uamus proceedings to compel him to audit
and allow the same, that section 49, c.
~. OF the city charter, which provides
that the common council shall not have
power to ordain or authorize any compro-
mise of any disputed demand arising out
OF contract, or any allowance thereof, or
thereof, is not applicable to the facts in
this case.
Order affirmed. Collins, J.
Lenz Verdict Stands.
Mary LEM, a minor, by Sophia Lenz her
guardian ad Item, Respondent, VS.. City
OF st. Paul, Appellant.
., Held. In a personal injury case, that
mere was testimony to support a verdict
in favor Of the plaintiff.
No New Trial.
Northern Pacific Railway Company pc
tltioner, Appellant, vs. David A. Dun
can ct al, Defendants, David A. Dun
can ct al Respondents
/. On the trial OF the question Of dam
ages in the district court on appeal from
the award of commissioners in condem-
nation proceedings, defendants, Gland
owners), offered in evidence the award
cifying the specific purpose intended for
1t. The trial court instructed the jury
that the award should not be considered
by them on the question of damages: and
that the instruction was an accurate
statement of the law; and If, because
the award had been offered in evidence
without limitation or restriction as to
by the jury on that question and plain
tiff had the right to insist. that it be so
considered, though not ordinarily compe.
tent upon that issue, 1t was the duty Of
its counsel to call attention -of the court
to the asserted right and having failed
to. do so and no exception having been
made subsequent to the trial is insult
hcient to justify new trial. The case
comes within the rule laid down In Stein
bauer VS.. Stone, 88 N. w. R. 754.
2. A deed Of real property contained
clause saving and excepting from the OPP
Grafton OF the conveyance a certain desig-
mated portion, and expressly dedicated the
excepted portion to the perpetual use
of the owners and occupants of property
abutting thereon. Held, to create a per-
petual easement in favor Of such abutting
and passed with the abutting property as
an appurtenance.
3. Certain assignments of error exam
1ned and held to present no reversible err
Order affirmed Brown, J.
Should Have Protested Check.
Fort Dearborn Bank appellant, vs.. se-
curity Bank of Renville, respondent.
/. Tomlinson, Stafford & Co.. issued
their check on the Union Stock Yards
payable to one Holton, who Endorsed the
same in blank and presented it to defen-
dant for payment. Defendant cashedf At
and immediately sent it to the plaintiff
at Chicago its correspondent at = that
place, for collection. Upon the receipt of
the check. plaintiff credited defendants
~.
PENDANT subsequently drew II. out. Being
unable to collect the check plaintiff
brought this action against defendant for
money had and received. The evidence
is examined and considered and held
sufficient to sustain the findings of the
trial court to the effect that, by plaintiff S
failure properly to protest the check for
payment, the indorSer and drawer Thereon
were discharged; in consequence of which
defendant was damaged prima facie to
the full amount of the same.
2. Plaintiff was defendants agent for
the collection of the check and was bound
to exercise reasonable care and diligence
to protect all the rights of defendant In
respect to the liability Of the indorser
and drawer thereof; and a failure to ex-
ercise such care released defendant from
liability to plaintiff.
8. The measure of damages in such case
Is, prima facie. the face value of the
check, subject to reduction and mitiga-
ton, however, by a showing Of insol-
vency of the persons discharged from
ages in point Of fact: solvency is ordinar-
lily presumed, and the burden is upon him
who asserts the contrary to. prove It,
4. In an action for money had and re-
ceived, where the complaint alleges no
facts upon which plaintiff relies for recov-
cry, but only that plaintiff paid out for
the use and benefit of defendant and at
his request, specified sum Of money, the
defendant may, on the trial. under gen.
eral denial offer any evidence at his COM
mand to contradict expiain, or avoid the
facts proven by plalntln
Order affirmed. Brown, j..
w r. Counter Claim Necessary.
Coke Bros. & Company. appellant, VS..
Anoka Water Works, Electric Light and
Power Company. respondent.
1. Where yender refuses to deliver
goods and merchandise according to a
contract therefore entered into the ven
dee may recover as damages the differ
ence between the contract price and the
market value of the property at the time
and place Of delivery. Where there is
no market value at the place Of delivery.
the price in the nearest market with the
cost of Transportation added determines
the value of the article.
g. Held, that under the foregoing rule
cause which required the submission of
defendants counter claim to the jury.
Order affirmed. Collins. j.
Acted In Bad Faith.
BENJAMIN c.. Taylor, as receiver of the
Madelia Farmers Warehouse Company
appellant, vs. William p. Tanning ct al,
respondents.
I. IN an action by the receiver of an
insolvent corporation to vacate a judg-
porate property, obtained in the name of
a third person but for the use and bene-
fit of six members of the board of direcN
tors Of the corporation: it is held, the
corporation being insolvent when the
notes upon which the judgment were ex-
ecuted and delivered, that in obtaining
such Judgment the directors did not act
with that good faith and observance Of
duty which was demanded of them as
trustees of property which 1t was their
duty to preserve for the equal benefit of
all creditors.
Judgment reversed. Collins, j..
Low Rates to Portland, Me-, and