The Minneapolis journal. [volume] (Minneapolis, Minn.) 1888-1939, 1906-02-02
Supreme Court

Thomas Skeffngton, respondent, vs.. Daniel cyl
ward, appellant.
Syllabus: First-In an action for malicious
conviction of the plaintiff, which
vas reversed on appeal and the plaintiff dis
charged, is not conclusive but strong prima facie
evidence Of probable cause, which may be re-
1utted not only by evidence tending to show
that the conviction was procured by fraud or
perjury, but also by any competent evidence
Which satisfies the jury that the prosecutor did
not have probable cause for instituting the pros
ecution.
second-The verdict for the plaintiff in this
case is sustained by the evidence.
Order affirmed. Start, c. J.
Fred Doerr, by Joseph Doerr, his guardian ad
litem, appellant, VS.. the Daily News Publish
ing company, respondent
Syllabus When an operator or pressman of a
printing press, while engaged with his helper in
the usual duty of running the machine, starts
who by Ieason thereof is injured by having his
fingers drawn between the rollers thu relation
between them is that of fellow servants, not
withstanding the helper is under the direction
and control Of the operator in respect to the
running of the press.
The application of the rule is not changed by
the fact that such pressman is the foreman of
the pressroom. having general charge of the men.
order afhrmed. Lewis, ].
r. w. Bonness ana NJ NJ Howe, copartners as
Bonness & Co., respondents, s. D. Felsing
and E. G. Gustafson ct al, copartners as Eel
sing Gustafson & Co., appellants.
Syllabus: First-The rule laid down In Ames
vs. Cannon River Manufacturing company q
Mimi, 245.a to the effect that trial court may,
in civil cases, express to the jury In its nstruc-
tons its opinion of facts in issue, provided the
ultimate determination thereof be left to the
jury, followed and applied.
Second-If party be apprehensive that the
jury may be unduly Influenced thereby he should
specially request the court to instruct that they
not the court-are the exclusive Judges of
all questions of fact.
Third-Defendants represented that tract of
land owned by them contained large quantity
of standing timber, upon which plaintiff relied
in purchasing the timber. The representation
was not true. the land in fact contained no
standing timber Of any consequence. 1t is held
In this an action to recover back the purchase
money paid for SUCH climber. on the ground that
the representations were false and untrue, that
the defendants could not relieve themselves from
the consequences of their false representations
merely because the plaintiffs could have ascer-
TONED the fact respecting the existence nom
existence Of The timber, because they made
an Intellectual attempt to do so.
Order affirmed. Brown, j.
! Jones & Lawson. respondents, We. Mime
| sofa & Manitoba Railroad company, appel
liant.
| Syllabus: Action in replevin to recover the
| been converted by appellant. A contract be-
tweenq R., representative of NJ. NJ. & Co. ap-
pe1lants contractors for constructing railroad,
| and o., provided that O.. should sell and de-
| liver to r. for NJ, NJ. & Co., four months from
date, $4,000 railroad ties at certain price
| and of certain character, to be delivered on
| the right-of-way, as required, with the right
| to purchase and reject any ties not comply ing
! with certain specifcatio price to be paid
when the ties were inspected on the right-of
way. The evidence was conflicting as to wheth.
er the ties were cut and delivered under the
| terms of the original contract, extension
| thereof, under new verbal contract, subse
quent to the expiration Of the original. The
evidence was also conflicting as to whethe,
the ties were piled and delivered by o. upon the
| right-of-way, provided by the contract, and
whether by piling them in such manner o. In
tended to part with dominion over them. There
was also conflict in the evidence to whether
R. had waived inspection of the ties, ant
| whether they had been fully paid for ant
accepted by him, whether title still re
manned in o. at the time he executed a chatte
mortgage upon the property. Held: The tria
court submitted these several questions to tn,
jury by proper instructions, and the fndin.
Of the jury is sustained by the evidence.
Second-It appeared from the evidence tina
the value of the ties was about three times tn
amount of the mortgage debt, and that at tn
foreclosure sale the mortgage purchased tn
property, assumed possession, and thereupon ex
ecuted a bill of sale to respondents, and tn
question arose at the trial, whether or not con
ced1ng the mortgage 10 nave been valid, NJ, ii
& Co. acquired title to the ties any par
thereof, subsequent TO the execution of tn
mortgage. This question was submitted to til
jury for their determination by appropriate
instructions, and the evidence warrants the cor
clusion reached by the jury. The grantee O
the mortgage, in possession after invali
chattel mortgage foreclosure sale. may recoye
the full value of the property, even In exces
of his debt. in action against strange
who shows no right to the property. Held: Th
evidence justifes finding that NJ. NJ. & &c
did not acquire any title to the property sui
sequent to the execution of the chattel mort
gage, and hence were strangers to the title g
the time of the conversion
Third-It was conclusively shown at the iris
] that the ties in question were taken by tn
l representatives Of NJ. NJ. Co. while the
We're engaged in building the railroad col
Y tractors of appellant; that the rails spike
S TO the ties and the read was used by thel
In prosecuting the work. and in accordanC
: with the terms of their contract was turne
, | over to. and received by appellant. Upon tn
II state of facts, it is unnecessary to determir
Il whether the construction contract entered I'M
J, between appellant and the contractors. NJ,
8 & Co.. constituted the latter independent col
v agents and employees of appellant. For the pu
:, pose of this case, it is assumed that The
= were independent contractors, and that the r
l. lation of respondent superior did not exist. b
), when upon the trial 1t was established as
fact that the ties in question had been CO
verified by NJ. NJ. & Co.. used in the constru
ton OF the railroad which was over
, and received by appellant as in full compliant
:, with the contract, the presumption arose, co
III sidering the nature Of the contract and q
e evidence in the case, that appellant had mott
of respondents claim, and 1t was then incur
bent upon appellant TO establish. by sattsfacto
:, evidence, that 1t had no knowledge or suh
. cfent notice to put it upon inquiry Of q
IL fact that the ties in question had been so co
= verted and used in the construction of Il
is road Held further: That appellant having su
is mitted no evidence at the trial to overcor
Is the presumption that 1t received the road wi
!. knowledge of respondents claim, the instru
- ton by the trial court to the effect that NJ,
y & Co. were the representatives of appellant, W
Is without prejudice; and further, the instructi
III to the effect that respondents were entitled
recover if the jury should find that r. or NJ.
& Co. had not acquired title to the ties, W
10 justified by the evidence.
II Order affirmed. Lewis, J.