The Minneapolis journal. [volume] (Minneapolis, Minn.) 1888-1939, 1906-01-26

Ian BurkhdrQt ana company.
Supreme Court
Emery Ulseth by liver Ulseth, his guardian ad
litem, respondent, Crookston Lumber COM
pany, appellant.
Syllabus: In personal injury action the
evidence considered and held not to show action
able negligence the part of the defendant
Order reversed and new trial granted.
Elliott, J.
The G. n Phinney Land company, respondent,
vs. Coolidge -Schussler company, appellant.
Syllabus: A contract (set out in the opinion
herein) for the purchase of land construed and
held that it did not vest in the vendee any
present interest in the land with the right on
his part to enter into possession thereof and
cut, carry away and sell the growing timber
thereon.
Judgment affirmed. Start, c. J.
In re estate of John Tyner, deceased, Richard
Tyner ct al, appellants, Richard Vartan,
Jr., ct al, respondents.
Syllabus: T. left a will by which, after pro-
viding for his wife during her life, he left
practically all his property to the relatives Of
his second wife to the exclusion OF his own
children. Upon an appeal from order adj
hitting the will to probate, it is held that the
evidence sufficient to show that the instru-
ment in question was the result of undue inhu-
Judgment reversed and new trial ordered.
Elliott, ].
George II. Atwood, appellant, vs.. Nathan D.
hammers ct al. defendants; Nathan d. Lam
mers, respondent
Syllabus: First-A partial payment upon q
promissory note by one of two joint makers
will not prevent the running of the statute of
limitations as to the other maker.
Second-The. Endorsement upon promissory
note of the proceeds of the sale of collateral
securities which were deposited with the note
at the time it was given does not constitute a
part payment which will interrupt the running
of the statute Of limitations.
Order affirmed. Elliott, J.
Leonard Berg, appellant, Rachel E. Van Nest,
respondent.
Syllabus: Lands assessed to "a ct al are
in legal effect assessed to a. and other parties
unknown. When the sheriff receives q notice
of expirat ton of redemption from a tax sale in
which the lands appear to be assessed TO "a.
ct al he is not required to Investigate the
records and ascertain the Of the true
owner of the lands. If the lands are vacant and
unoccupied, he may serve the notice upon such
unknown owners by publication. He has no
duties to perform other than those prescribed by
the statute.
Judgment reversed Elliott, ].
D. C.. McConey respondent, VS.. Bolton Oil &
Gas company ct al. defendants; Edwin r.
Williams ct al, appellants.
Syllabus: First-The evidence offered on be-
half of appellants for the purpose of showing
| the stock subscribed for had been fully paid in
consideration of the transfer to the company
of certain property, was insufficient to justify
a holding to that effect, but sufficient
| sustain finding that appellants subscribed for
| the capital stock of the corporation and had
| paid nothing therefor.
secondg-It is the general rule. not changed
| by the laws Of Arizona, that a stockholders
liability far unpaid subscriptions does not con-
| tinue after transfer Of the stock but follows
the stock, except when transferred for the pur-
pose of defrauding creditors. If stakeholder
who is indebted to the company his SUBJ
| scription transfers the stock without considera-
! ton, and after the corporation has become IN
| solvent and in debt, prima facie case of fraud
ulent transfer is made out.
! Third-Conceding that as between the parties
| the original capital stock of a corporation may
| be sold for sum less than its par value, as to
! subsequent good faith creditors of the corpora
ton the transaction is void. and the full par
| value may be collected In this. an equitable
| action brought by creditor of an insolyent cor
poration. the complaint alleged that a stock
holder had subscribed for stock at par and had
! not paid for the same. Held the subscriber,
under the circumstances of this case, cannot
avoid the liability upon the ground that the COM
plant did not more specifically allege the nature
| of the transaction.
Fourth-Judgment having been recovered
| against the corporation in this state, where it
maintained its principal place of business, and
| 1t appearing that it possessed no assets in
| Arizona, where it was Incorporated 1t was not
necessary to secure judgment against the cor
poration in Arizona preliminary to bringing an
action against the stockholders in this state.
| Order affirmed. Lewis ],
Albert ]. Niebels, respondent, vs. B. J. How
| land, appellant.
! Syllabus: First-When an owner of personal
property agrees to sell the at a stipulated
| amount, in consideration for real estate to be
| conveyed to him, and delivers such property to
| the purchaser who fails to pay for it in the
| manner provided, the seller may maintain an
QofiO for Tho 81
| Second-If in such action the purchaser pIeads
as defense that he was at all times ready
and willing to perform the contract of purchase
and had rendered proper CONVEYANCE in pavnpnt
and that the seller had refused to accept the
same, the seller may reply to such answer by
admitting the contract, and alege that 1T was
entered into by reason of the fraudulent repre-
sensations Of the purchaser and for that reason
was not performed. Such reply is by way of
confession and avoidance only to the new mat.
| ter set up In the answer, and is not departure
from the complaint.
| Third-The evidence in this case WAS sufficient
| to justify the jury in finding that material and
substantial Misrepresentation were made by the
purchaser in respect to the nature of the prop-
erty to be conveyed to the seller, who was JUS
| titled in refusing to accept the same in pay
| ment.
Judgment affirmed Lewis. ].
John NeatsOn. appellant, vs.. Mitchell W Nc
Donald respondent.
Syllabus: First-Under c. 800, Laws 1897, an
parties to a joint obligation
! Second-1f one Of the parties to a Joint
lease. when sued independently, pleads gen.
eral denial and makes no objection either by
answer or at the trial, he is not, after a de-
/ cision in the case, entitled to amend his an
swer and set up the fact that such contract was
joint; and an order of the court allowing such
| amendment is an abuse of discretion.
| Third-Upon motion for new trial on the
ground that the decision was not justified by
evidence, and for errors of law occurring at
the trial, it is error to grant the action when
! neither the order nor the memorandum of the
, court indicates that it was granted upon the
. ground that the evidence was insufficient to
support the decision, errors Of law occur
ring at the trial and the evidence reasonably
tends to support the verdict.
Order reversed. Lewis J.
Fred Antletz, respondent, vs.. 81. a. Smith,
appellant
: Syllabus-Action to recover damages for per-
sonal injury. The employee notified his en-
: poyer that the machine was dangerous and
was told to "go ahead and work, and 1 will
: fix it, In the afternoon of the same day he
q was injured. During the impaneling Of the
jury controversy to the right Of the
plaintiff to show that the defendant in
sured by indemnity insurance company,
and the defendant claims that the plaintiff IS
S attorney was guilty of misconduct The jury
returned verdict for $500 for the PLAINTIFF.
On the evidence. Held:
(a) That the danger not so imminent
that the plaintiff assumed the risk mat.
! ter of law.
(b} Shat tn eplaintif's attorney was not
!. guilty of prejudicial misconduct. For the pur'
pose of enabling him to intelligently select the
g jury, he had right to learn whether the de-
!, | PENDANT insured. Spoonick Backus.
: Brooks Co., SO Mimi. 354.
(c) The verdict was not excessive