The Minneapolis journal. [volume] (Minneapolis, Minn.) 1888-1939, 1906-11-23
Supreme Court


N. r, Hobart. respondent, ys. J. r. Stewart.
appellant. sI 6sg,., ~
tract Of land upon which there was a mortgage. |
for the payment OF which he was not personally |
bound. He agreed to give the plaintiff, real
estate broker, the exclusive sale Of the laud
for sixty dnys and one.half Of all moneys OBJ
tainsd on Gale thereof over $40 per acre, less
1855. The plaintiff procured purchaser to |
WHOM the defendant conveyed the land burdened i
with the mortgage, but the purchaser by the |
terms OF the deed did not assume its payment. |
Held. that In determining plaintiffs compensa-
tion the amount OF the mortgage must be taken |
Order affirmed. Start C. =.
Clarence Fl. Gotten. respondent, vs.. Willrnar &
= Sioux Falls Railway company, appellant. 4
Syllabus: First-Whcn 1t is alleged that the |
bell on a locomotive was not rung as the train
appron ched .rossing, the evidence Of witnesses
VINO were present, conscious, In the possession
OF their phy ac8l senses and listening for signals.
that they did not hear 1t ring has prObative
yalue sufficient TO take the issue to the jury.
alto other witnesses testify that the bell did
ring. ~*t- ~
Second--Nhen a person employs a livery team
With a driver to carry him to specified place,
the relation of master and servant does not
exist between. the passenger and the driver.
they are not engaged in common employment
OF jolat enterprise, and the negligence Of the
driver In driving upon railway track without
taking proper precautions to ascertain the ap-
prosch OF train is not imputable to the pas
senger. TIE latter, however, is responsible for
his own personal negligence. ii.
Third-1ha primary duty of caring for the
safety of the vehicle and passengers rests upon
the driver, and, unless the danger is obvious or
is known to the passenger, the latter may rely
upon the assumption that the driver win exer-
else proper care and caution In approaching q
place of danger. But II the passenger knows
that the driver is incompetent or careless, or
sees that the driver is not aware of the danger
and is not taking proper precautions, it is his
IN nott " hiYnn nj fho nd fQ lurn
to do so is negligence. :.
Order affirmed. Elliott j.
Minneapolis, Red Lake l. Manitoba Railway
company. respondent. vs.. William w. Brown
ct al. defendants, Arne D. Moe OF al, APP; |
pellants. >..- -
Syllabus: First--In order to induce railway
company to extend its road TO a village sixty
seven citizens signed a contract by which they
bound themselves to procure the right Of way.
furnish certain material and obtain from one Of
for. terminal purposes Of certain real estate
then owned by him. In the event of breach
of the contract the maximum amount Of damages
for which east signer was to be responsible was
limited to $500. In an action by the railway
company against all the persons who signed the
contract the complaint alleged that the company
had performed the contract and that the defend
ants had failed to perform and prayed judg-
ment that the defendants who owned the land be
required to convey the same; that the court de-
termne the amount of damages to which the
of the defendants to perform the obligations I'M
posed by the contract, and for such other and
further relief as to the court may seem just
and equitable.
(a) That the complaint states but cause
Of action:
~ That the relief to which plaintiff is en-
titled Is determined by the allegations Of fact
and not by the prayer; -
(c) That the complaint alleges facts which
entitle the plaintin to some relief the complaint
Is good demurrer .,,.-
Second-When one of two causes Of action at
TEMPTED to be stated in a complaint is bad for
want Of facts constituting cause of action,
there is no misJcinder of causes of action.
Order affirmed. B.. ...5 Elliott, ].
Archie Whaley, appellant, vs.. John N. Bayer re-
spondent. ~ -'1'7' ..i.ft':.T@ ~
Syllabus: R. l.. 1905, section 2o3, authorizes
and requires the district courts Of the state to
hear and determine election contests Instituted
hereunder in the manner authorized by section
2Q2. -, 49, $500
Where jurisdiction over certain subject matter
Is conferred upon court and procedure, is
provided by the statute the court will proceed
under its general powers and adopt such proceed
ure as is necessary to enable tt to exercise and
make effective the jurisdiction thus granted
order reversed. Elliott, J.
Chester w. Sanford, appellant, vs. Maria ",
Sanford ct al, respondents. ~, Il, - T.,
syllaeus:, A tenant in common Of certain
lana executed deed which purported to con.
vey the entire land. The grantee recorded the
oeed and went into possession hereunder and
held adverse possession of the land for more
than twenty years. The other tenant in com
mon knew OF such possession, but did not know
OF the existence Of the deed. Held: aIfcG 4
F1rst-That the possession Of the grantee In
the deed was that Of an apparent stranger
Second-The rule that a tenant in common
who has knowledge of the existence of deed
executed by his co-tenont. may assume that such
cotenant has conveyed only his interest in the
o.
other tenant had no knowledge that the party in
possession was claiming under a deed.
Third-Where one tenant in common attempts
to convey by warranty deed and enters upon
the land and claims and holds exclusive pos
session of the whole thereof. the possession and
claim are adverse to the title and possession
Ninn. 533. -
Judgment affirmed ELLIOT J.
George A. Dart, appellant, vs. Esther Russell,
respondent.
Syllabus The memorandum attached to an
order granting new trial herein construed and
h 1s;1 that 1t appears therefrom that the new
trial was granted on the ground that the verdict
was not justified by the evidence. Held, fur
Their, that the preponderance Of the evidence is
not manifestly In favor of the verdict
Order affirmed. Start CT
John J. Sutton, respondent. vs. Great Northern
Hallway company, appellant. ~
Syllabus While demand in an action of
troyer must be unconditional, the refusal TO
abide by the conditions OF special property does
not operate az conversion, where a reasonable
qualification Is annexed to that refusal = !
1t Is ordinarily for the jury, under proper
instructions from the court, to pass upon The
existence Of the qualification and its reasonable
ness.
In cases Of merely technical conversion where
the property was returned in the same. condition
as before the unauthorized act not only when
the owner voluntarily receives back the goods.
but also when he takes them back against his
will, the plaintiff will be entitled to only nomi-
nal damages and costs. --s
Plaitif paid for his shipment as emlgrant
movables and stock. On arrival at destination
defendant refused to deliver until additional
charges were paid, because Of alleged erroneous
classification. On plaintiffs refusal to pay these
charges there was dispute in evidence as to
qualified refusal to deliver Defendant placed
the stock in a livery stable. Subsequently II
notified plaintiff that his stock was at such
place at his expense. He did not take his prop
erIy In its charge to the jury the court as
sumed a conversion; the jury found for plain
tiff in sum based on the ordinary measure OF
damages in conversion 1t is held that, in view
Of the actual course of trial. plaintiff was en-.
titled to recover such damages.
Order affirmed. :e' -Jageard J. !
Jacob Stein, respondent. VS.. Hans C. Hanson
ct al, defendants, Hans c.. Hanson, appel
lant ~.--r-..s 49,. / 3!