The Saint Paul globe. (St. Paul, Minn.) 1896-1905, 1902-04-26

using third party as medium through
| whom to secure a deed to the premises
from the owner, aa1 then sells at an adj
vance, he will % held accountable 10 he
| owner for the profit realized
| Complaint exam ined, and held to
| state cause of action at Jaw for money
I had and received
| 4. Evidence not conclusive as to the ma
| ture OF the contract between the owner
and agent, and the court erred in ordecing
luogmeni Tor defendant notWthstandlng
the Verdlct. Order reversed and Il new
| trial granted. lewis j.
| Lovely, J.
Defending Was vigiIent.
Norris r. Griswold appellant, VS.. Great
| Northern Railway Company, respon-
! dent.
In an action for personal injuries al
| legged TO nave been caused by the neSil-
/ gence of defendant the evidence is exam
! 1ned, considered and held to sustain the
order of the trial court directing :udg-
! ment Tor defendant, Notwithstanding Tie
| verdict Of the jury, on the ground of con-
! tributory negligence on the part Of plain
! tiff. Order atnrmed.s Brown, j..
Hennepin Court Reversed.
George Roe, re spondent, VS.. Philip B.
| Winston ct al, appellants.
l. In an action for personal injuries al
/ legged to have been caused by the negIi-
| gence of one of defendants servants, the
| jury returned special findings to the ef-
feet that the servant complained OF was
not Negligent in the respect charged M the
| complaint, but returned a general verdict
| for plaintiff; it is held "a that the special
! findings control the general verdict, and
! as they are inconsistent Herewith, there
must be new trial; and %, that the
verdict cannot be sustained On the theory
! that an issue of negligence, not severed
| by the allegations OF the complaint was
! l1tigated on the trial With the consent OF
/ the parties.
2. The true test in determining whether
| the doctrine of respondent superior APP
! plies in any case is, does the person mold
1 ing the position of master nave, Tor the
! time being, or is it his duty to assume,
control over the servant in respect to the
! performance of his duties. Ii such right
| or duty of control exists the doctrine APP
| plies, otherwise not. The right to employ
and discharge the servant are elements
! tending to show right of control, put
are not conclusive or indispensably nee
essary; the ultimate test being the right
or duty to cOntroE
3. Defendants were eorartners engaged
in general business of railroad construc-
! ton work, and had entered into con-
tract with a railroad company to do GER
4 tain grading in Strengthening the line OF
the company's road. at point IN the
state of Minnesota. To facilitate its per-
Torrance, and as a part of the contract
/ between the parties, the railroad COM
! pany furnished defendants With certain
work trains composed of cars and en-
gines, with employees to operate the same.
! The servants in charge of Such trains
remained in the general employ OF the
railroad company, but were rad by oe,
| PENDANTS and for the time being, were
under their direct charge and control.
Plaintiff, brakeman on one of such
trains, was injured by the alleged negh-
gence Of the engineer. 1t is held
a. That the doctrine of respondent SUI
I perior applies, and that the servants i.
the control and management = such
/ trains We're, for the. time being, the ser
wants and employees of defendants; and
20 That in the performance of this
work defendants came within the scope
and purpose of 1916. Rev. Stat, Wis,
1898, which provides in substance and Ell
feet that every railroad company operat-
ing railroad wholly or in part within
that state shall be liable for damages
| sustained by any of it's employees while
| engaged-in the performance of their ou-
ties, by reason of the negligence OF Eel
1 low servants, the injured servant belng
! free from contributory negligence:
80 The evidence received on the trial
of the action was not conclusive that
| plaintiff was guilty of contributory negh-
gence Order reversed and new trial
granted. Brown, j.
Judgment Was Authorized.
Western Realty Company, respondent vs.
Darlington Arch Phelps ct al, appel
| lantS.
i. A stipulation entered into between
the parties to this action providing Tor
the entry of judgment in plaintiff favor
! in the court below construed and held TO
authorize the judgment appealed from.
Judgment affirmed. a-BfoWh, =.
Judgment Is Ordered.
The Piano Manufacturing Company, APP
| pellant, VS.. William Richards, respond
ent.
l. Upon an express promissory warran-
| ty against the known defects of an imple-
ment sold for use, 1t is necessary Tor the
party relying upon the same to plead as
well as prove, what it actually was
worth, as well as what it would have
been worth if as warranted.
2. Upon a claim for breach OF war
ranty, the failure to plead facts showing
| the difference between the value of the
thing sold and its value had it been as
warranted lisa substantial omission that
! may be raised after verdict upon mo-
ton for judgment.
8. Upon a consideration of the plead
ings in this case, held that the failure to
allege the essential facts to show that
damages were occasioned by the alleged
breach of the warranty when no effort
| was made to cure such omission at the
trial, that a judgment Notwithstanding
such verdict should have been ordered by
the trial court. Order reversed and judg-
ment ordered for plaintiff. Lovely, j.
Cannot Charge Two Fees.
George B. Dart, appellant, vs. John K
Sonneayn, respondent.
L. Where a real estate. broker is en-
| ployed by the owner of lands to exchange
the same for other property and a third
person having information thereof from
| the broker comm unicateS through him
with owner of the land and effects sale,
the felatlOn OF principal and agent be-
tween the broker and the owner forbids
| any legal inference that there is an i'm
! piled promise by such third party based
upon supposed benefits from the trade to
pay the broker commission for services.
2. An offer to prove a general custom
| among brokers acting for both parties
to an exchange eff lands to charge COM
| missions to each party, held properly re-
fused, for the reason that it appeared
| that the broker was the agent of one
of the parties and could not therefore le-
gally demand compensation from the
other order affirmed Lovely, J.
Complaint was Sufficient.
| Betsy Johnson, -Brynhild Johnson and
Gina Korsvold. respondent, vs. Peter
! j. Velve and Mary We've, appellants.
1. An issue of law arising upon a de-
murrer may, by virtue of General Stat
| utes 1884, section 53SS, be notice for hear
| ing before the court in the county where
| IN the action is pending at any time
not "
2 In an action to set aside a deed or
other contract on the ground that its
ttAeeeutlon was procured by fraud. undue
| influence or duress, the complaint must
! allege the ultimate facts from which such
CONCLUSION follows. but it is not necessa I-y
| 70 allege mere evidentiary facts by nronp
established " oe
Rule applied and held that the COM
| Pldint hereln states cause of action Or
am Lleu' Start, c. J.
! maintenance of Ditch.
herman Schulenberg, appellant, VS.. viii
nam zimmerman and Albert thinner
man, respondent.
Inc use or enjoyment of an easeme 1t