The Saint Paul globe., 1904-12-17

BILE to vary or contradict the express
terms of a contract.
2. A contract is void which has for it's
object the practice of deception or fraud
upon third party, or to take advantage
of confidential relations with him for the
purpose of drawing him into bargain
by Which the party undertaking to use
his influence will secretly receive benefit
from the seller.
g., Rules applied and held that the trial
court did not err either in its rulings
as to the admissibility of evidence or in
its charge to the jury.
Order affirmed. Start, c. ].
George H. Crosby, respondent, VS.. Scott
Graft Lumber Company, appellant.
/. Action to recover damages for a
breach of contract whereby the defendant
agreed to furnish materials of a stipulated
quality to be used in the construction of
on lots owned by his wife. Held: That
the defendant Is entitled to set up as a
counterclaim an unpaid balance of the
contract price for the materials and in
case he establishes his counterclaim to en-
force his lien therefor in this action and to
that end to have the plaintiffs wife made
a party hereto.
z. Under our system of pleading equita-
bic defenses and counterclaims may be
interpoSed in actions at law. In such
eases the legal issues are triable by jury,
the equitable ones by the court, and the
order of the trial a matter of discretion
with the court, to be determined by the
exigencies of the particular case,
Order reversed. Start, C. J.
Fred Elmer, appellant, VS.. Charles Well
sand and Evangelical Lutheran ST.
Johns Congregation, of Billings, Mimi,
respondents.
B entered a tract of public land under
the homestead laws of the United States
and gave to the defendant, pursuant to
section 2288 u. 81 Comp. Stat. 1901
contract to convey to it two acres of the
b, by an arrangement with c., relin-
qulshed his entry, and G then entered the
tract and received patent therefor. c,
at the time he secured such relinquish-
ment, had notice Of the contract and
agreed to carry it out. The defendant
thereafter. with his knowledge and con-
sent, entered into the possession of the
two acres and made valuable and perma
nent improvements thereon Held that
held the legal title to the two acres in
trust for the defendant and that the plain
tiff had notice of the defendants rights
when he acquired the tract.
Judgment affirmed. Start, c.. J.
Lehigh Valley Coal company, a corpora
tion.. respondent, vs.. J. K. Gilmore and
Sarah K. Gilmore, c0-partnerS as ]. K.
Gilmore & CO.. using the trade name,
Minneapolis Iron Works, appellants.
1. foreign corporation doing business
complied with the statutes prescribing
conditions upon which such corporations
may do business within our borders, and
the burden is upon the defendant, where
the failure of the corporation to comply
with the statute is relied upon as de-
fense, such failure not appearing on the
face OF the complaint, to affirmatively
plead the same in his answer.
2. Other assignments of error held not
well taken.
Judgment affirmed. Brown, ].
Kate j. Tingue. as Administrative of the
oct fo 70 of doli 10 art cod
respondent, VS.. o. M. Patch, appellant
J.. Findings Of the trial court construed
in connection with the evidence and held
to show a contract between the parties
for the sale and purchase of certain land.
2. Where a contract is silent as to time
of performance the general rule is that 1t
must be performed within a reasonable
time after 1t Is entered into.
8. Plaintiffs testate and defendant en-
tered into q contract by which the former
agreed for specified consideration to sell
and convey certain land to defendant. The
time of payment of the purchase price
was not definitely fixed by the terms of
the agreement, but after 1t had been en-
tered into defendant was permitted by
plaintiffs testate in her lifetime, and by
plaintiff after her appointment as execu-
trix. for the period of about ten years to
remain in possession of the land, and dur
ing that time, in reliance upon the con-
tract, he paid part of the purchase price,
made annual payments of interest and
placed upon the premises valuable and
was continued from time to time during
the period stated~by the mutual consent of
the parties until just prior to the com
mencement of this action, when plaintiff
repudiated it and, without notice fixing
time In which he might perform, de-
clared defendants rights hereunder for
fefted on the ground that the contract
was void for uncertainty of time of per-
formanee by him.
It is held: "a, that equity will not per-
NIT plaintiff under the facts stated, ar
bitrarily to declare forfeiture of the
contract; (2), that she could effect a cam
collation. thereof and a forfeiture of de-
fendant's rights only by giving notice to
defendant OF her intention to do so and
allowing him reasonable time within
which to perform his part of the contract,
and f3), that the contract, having been