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place of the delivery of the contract, the parties may stipulate for the higher rate of interest without incurring the penalties of usury, providing this be done without any intent to evade the usury law of the place of the contract.

2. An intent to evade the usury laws of this state will not be inferred from the mere fact that the payees of a note executed and deliver. ed in Minnesota, bona fide residents of another state, in which the stipulated rate of interest was lawful, made such note payable at their usual place of business in such other state.

(Syllabus by the Court.)

Appeal from district court, Todd county; L. L. Baxter, Judge.

Action by Charles A. Ames against Peter Benjamin. Finding for defendant. From an order refusing a new trial, plaintiff appeals. Reversed.

Geo. S. Grimes, for appellant. L. M. Davis and N. H. Miner, for respondent.

supervisors of defendant town laying out a highway across his farm, and assessing his damages at $150, for the purpose of wholly reversing the action of the board, on the ground of illegality in the proceedings, and also, in case the location of the highway was confirmed, to secure an increase in the amount of damages. This he had the right to do. Pairier v. Board, 68 Minn. 297, 71 N. W. 382. The appeal was duly tried in district court, and the order appealed from was affirmed in all respects. The present appeal is from an order refusing a new trial.

1. It is urged by Anderson's counsel that the order made by the supervisors was illegal, and not within their jurisdiction, because notice was not given to him of the meeting of the supervisors for hearing the road petition. The proof of service of a copy of the notice upon Anderson, attached to the original, was insufficient, although the copy seems to have been in his possession at the trial. But he resided on the farm, and it was shown that he was personally present at the hearing; twice walked over the line of the proposed road with the supervisors; was questioned by the chairman as to the amount of damages he would sustain, if the petition was granted; did state the amount claimed, which led to some discussion over the subject between the supervisors and himself; that he otherwise took part in the proceedings, and was awarded $150 damages. He therefore waived the omission to serve written notice upon him, if in fact there was such an omission. Kieckenapp v. Supervisors, 64 Minn. 547, 67 N. W. 602.

2. It is claimed that the damages awarded to Anderson by the verdict of the jury were inadequate, and that the award is not sustainable under the proofs. While there was evidence which would have justified the allowance of a much larger sum than $150, we cannot say, after a careful examination of the record, that a verdict in that amount was not supported by the proofs, for the contrary is true; and for that reason the verdict, as to damages, cannot be disturbed.

3. Although other points have been made in the assignments of error, counsel for Anderson have been content to rest their arguments, verbally and in the brief, on those hereinbefore discussed. So that, having disposed of these, we need not further discuss the case. Order affirmed.

COLLINS, J. The chattel mortgage upon which plaintiff relied to support his claim of ownership and right of possession was executed, acknowledged, and delivered in this state, and by a resident thereof, this defendant. The mortgaged property was then in this state, and delivery thereof to the mort. gagor, as vendee, by the mortgagees, as vendors, was simultaneous with the delivery of the mortgage. The notes secured by the lastmentioned instrument were executed and delivered at the same time and place to one of the firm of Proper & Harwood, payees, who resided at Wahpeton, N. D. Each was dated at said Wahpeton, bore interest at the rate of 12 per cent. per year, and was made payable at the payees' office at said Wahpeton. As will have been noticed, the rate of interest fixed in these instruments was usurious, under the statute of Minnesota; but, so far as shown by the evidence, there was nothing in the transaction which indicated any attempt on the part of the payees to evade our usury laws, unless such attempt is to be inferred from the mere fact that the notes were made pa yable in North Dakota, and drew a rate of interest in excess of that permitted in Minnesota. It is contended that, as the place of payment was fixed at Wahpeton, in North Dakota, in which state the agreed rate of interest was and is lawful, the notes become North Dakota contracts, and enforceable everywhere. The general principle in relation to contracts made in one place, to be executed in another, such as promissory notes exe cuted and delivered in one state, but made payable in another, is well settled. They are to be governed by the laws of the place of performance; and, if the interest allowed by the laws of the place of performance is higher than that permitted at the place of the delivery of the contract, the parties may stipulate for the higher interest without incurring the penalties of usury. Whart. Confil. Laws, par. 503; Story, Confi. Laws, par. 280; 3 Am. & Eng. Enc. Law, p. 549, and cases cited in notes 5 and 6. See, also, Peck v. Mayo, 14

AMES v. BENJAMIN. (Supreme Court of Minnesota. Nov. 29, 1898.)

CONTRACTS-LAW OF PLACE-USURY. 1. The general principle in relation to contracts made in one place, to be executed in another, such as promissory notes executed and delivered in one state and made payable in an. other, is that they are to be governed by the law of the place of performance, and, if the interest allowed by the law of the place of performance is higher than that permitted at the


Vt 33, in which Judge Redfield discusses the have been as to the mortgagor's creditors. governing rules. It must, of course, be un- But these creditors are not seeking to avoid derstood that making the note payable in an- it, and have not complained that the assignee other state, wherein a higher rate of interest failed in the performance of his duty when is permitted than in our own, must not be a he sold subject to the incumbrance. The dedevice to evade the usury laws of Minnesota. fendant purchased with actual knowledge of The transaction must be free from an intent the mortgage, and was given a bill of sale to violate the statutes of this state. From in which the validity of the lien was exthe mere fact that the payees of the notes in pressly recognized and affirmed. He purquestion, bona fide residents of North Dakota, chased subject to the incumbrance, makes no caused them to be made payable at their claim that he was defrauded when so purusual place of business, in the state of their chasing, and he cannot avoid the mortgage, residence, we cannot infer an illegal intent. placed upon the property by the insolvent Order reversed, and a new trial ordered. prior to the assignment, on the ground that

it was fraudulent as to the insolvent's cred-
itors. Milling Co. v. Schreiner (Minn.) 72 N.

W. 963, and cases cited.

In disregard of our rules, this case was set

down for oral argument. For that reason (Supreme Court of Minnesota. Nov. 29, 1898.)

statutory costs are refused to the prevailing CHATTEL MORTGAGE – FORECLOSURE DEFENSES.

party. Order reversed, and new trial One who purchases personal property from an assignee in insolvency proceedings, subject

granted. to a mortgage placed on the property by the insolvent prior to the assignment, cannot avoid such mortgage upon the ground that it was fraudulent as to the insolvent's creditors.

PRENDERGAST v. SEARLE. (Syllabus by the Court.)

(Supreme Court of Minnesota. Nov. 29, 1898.) Appeal from municipal court of Minneapolis; Andrew Holt, Judge.

ACTION for Rent - Evidence.

Hcli, on the facts admitted and found in Action by Charles G. Olson against John

this action, which was brought to recover rent Hanson. Judgment ordered for defendant.

for leased premises after the tenant vacated, From an order denying a new trial, plaintiff that the landlord was entitled to recover for appeals. Reversed.

two months' rent, and that it was immaterial

whether the tenant entered under a written Lewis C. Gjertsen, for appellant. Geo. R. lease for 20 months, or under a rerbal lease for Robinson, for respondent.

an indefinite period of time, and was a tenant from month to month.

(Syllabus by the Court.) COLLINS, J. Action in claim and delivery, tried by the court without a jury, and in

Appeal from municipal court of St. Paul; which, on findings of fact that plaintiff was

John I'wohy, Judge. not the owner of the property at the com

Action by L. J. Prendergast against Olaf mencement of the action, and was not en

0. Searle. Verdict for plaintiff. From an ortitled to its possession, and that its value was

der denying a new trial, defendant appeals.

Affirmed. $100, judgment was ordered in defendant's favor. This appeal is from an order denying Horton & Denegre, for appellant. Hunt, plaintiff's motion for a new trial.

Prendergast & Griggs, for respondent. The plaintiff's claim of title was based upon a chattel mortgage duly executed and ac- COLLINS, J. The defendant, as a tenant, knowledged November 9, 1896, by one Bjel- used and occupied plaintiff's premises for 33 land, then the owner and in possession of months; removing from the same June 30, the property, and duly filed November 14th 1897, and paying as rent the sum of $50 in of the same year, given to one orseth to se- advance for each and every month. This was cure the payment of a promissory note of an action brought to recover rent for the even date therewith for the sum of $160, months of July and August, 1897; and the which note and mortgage had been duly as- principal controversy at the trial was whethsigned, indorsed, and transferred to plaintiff. er or not defendant entered into possession Bjelland made an assignment for the benefit by virtue of a written lease, in which the of his creditors a few days after the mort- term was fixed at 20 months, commencing gage was filed, and defendant's claim of title September 1, 1894, with rent stipulated as to the property is wholly based on a purchase above stated. The plaintiff claimed there from the assignee in insolvency, evidenced was such a lease, which was left in defendby a bill of sale in which the lien of the ant's possession, while defendant contended mortgage is recognized, and the sale made that there was no written lease, and, if there subject thereto. In addition, it was shown was, that it was absolutely void, under the upon the trial that the defendant purchaser decisions of the court in Sanford v. Johnson, was informed by the assignee of the existence 24 Minn. 172, and Fall v. Moore, 45 Minn. of the mortgage. As between the parties to 517, 48 N. W. 404, and that he verbally leased the transaction, the mortgage was valid and the premises for an indefinite period, combinding, no matter how fraudulent it might mencing September 1, 1894, at a rental of


$50 per month, payable, as plaintiff claimed, order denied her motion to set aside and va. in advance. The court below found that cate the first order, and to permit an amended there was a written lease of the tenor stated, answer to be interposed; and on this appeal but as we regard the case, taking the facts the correctness of each of these rulings is as admitted and found, this finding has no challenged. materiality, when considering plaintiff's right The judgment must be affirmed. The comto recover rent for the months of July and plaint was in the usual form, alleging that August. If there was a written lease, and both defendants (husband and wife) were the if, as argued by plaintiff's counsel, continued owners of the property, and the making of use and occupation by defendant, and pay. a contract for repairs and alterations on their ment of the rent stipulated, after the term dwelling house with one Sephton, a contractor. expired, operated as a renewal, the order for That plaintiffs, as subcontractors, furnished judgment for rent for July and August, 1897, labor and materials of the value of $71.08, at -the tenth and eleventh months after the Sephton's request, and with defendants' 20 months expired,-was correct. Upon the knowledge, in and about said alterations and other hand, if there was no written lease, and repairs. It was alleged that the last item of if, as urged by defendant's counsel, their cli- labor and material (a bill of particulars being ent was simply a tenant at will from month made a part of the complaint) was performed to month, with rent payable in advance for and furnished September 23, 1897, and that the 33 months of actual residence, he could the lien statement was filed in the proper ofnot release himself from all further obliga- fice December 16, 1897. The answer denied tions to pay rent after June 30th by vacat- knowledge or information sufficient to form ing the premises on that day. If we should a belief as to whether plaintiffs performed

that removal from the premises, the alleged labor or furnished materials of the coupled with notice to the lessor of such re- value of $71.08, and therefore defendant de moval, was equivalent to serving the notice nied the same. It also denied that the last to determine the term of the estate, provided item was performed or furnished on Septemfor in Gen. St. 1894, $ 5873, in cases of es- ber 23d, “or at any time within the period of tates at will, the evidence shows nothing more 90 days before the filing of the notice and than a removal on June 30th. The defendant claim of lien herein." Really the only issue was therefore liable for the rent for two raised by the answer was as to when the last months commencing July 1st, and plaintiff item (material furnished and labor perforncould recover it, under the complaint in this ed) was so furnished and performed. On afaction, even if he failed to prove a valid fidavits, plaintiffs' counsel then moved to lease. Finch v. Moore, 50 Minn. 116, 52 N. strike out the answer as sham, and, at the W. 381. Order affirmed.

hearing, defendants' counsel presented and used counter affidavits; the result being an order granting the motion. The motion of

defendant wife for leave to file an amended HERTZ et al. v. HARTMAN et ux. answer was made immediately thereafter. (Supreme Court of Minnesota. Nov. 29, 1898.)

By one of the many affidavits it was shown SHAM ANSWER-AMENDMENT.

that on the 230 of September, as alleged in 1. When disposing of a motion made by a

the complaint, one of the plaintiffs performplaintiff to strike out defendant's answer ed labor at the defendants' house, in putting sham, the court may take into consideration

in place certain registers and borders in conthe quibbling and evasive character of defendant's counter affidavits.

nection with the furnace pipes. It seems to 2. Held, that the court below did not err

have been well established by the counter af. when it struck out the answer of one of the fidavits that these articles had been delivered defendants in this action as sham, and did not

at the house several days before this parerr when it afterwards denied said defendant's motion for leave to file an amended answer.

ticular day, but no attempt was made to con(Syllabus by the Court.)

tradict or disprove the claim that they were

actually placed in position on that day. In Appeal from district court, Ramsey county;

fact, several of the counter affidavits strongly John W. Willis, Judge.

tended to corroborate plaintiffs' assertion that Action by William Hertz and others against

the work of putting the registers and borders Maurin B. Hartman and wife. Judgment for plaintiffs, and defendant Amozine Hartman

in position in the floors was actually perform

ed on September 23d. And in her own atfiappeals. Affirmed.

davit defendant wife came no nearer denying F. W. Foot, for appellant. M, L, Country- this assertion than to aver that the plaintiffs man, for respondents.

"did not on said day furnish and put in place

said registers and borders, but that they were COLLINS, J. Appeal from a judgment in furnished and delivered * as early as a mechanic's lien case in favor of the plain- the last week in July or the first week in Autiffs, subcontractors, and against defendant gust." This was an evasion. It was merely wife, owner of the property in question. Up- quibbling over the matter of when the aron motion of plaintiffs' counsel, and by writ- ticles were delivered at the house, and raised ten order, the court struck out the answer of no issue as to when they were placed in podefendant wife as sham, and then by another sition. When the registers and borders were


brought to defendants' house was of no im- has caused all of the unfortunate litigation portance. The question was as to when the between these parties. At the trial of the work and labor of putting them in place was present case, Furuseth testified that after the performed; and, if it had not theretofore ap- attempted appeal, and just prior to the term peared from the moving papers that the an- of district court at which the appeal was swer of defendant wife was sham, she pro- dismissed, he met this plaintiff, and had a duced at the hearing abundant proof of that conversation with him concerning the appeal, fact. The quibbling and evasive character of during which plaintiff said that he had rethe counter affidavits could properly be con- ceived the notice, but that it was worthless, sidered when disposing of plaintiff's motion. whereupon Furuseth asked if defendant, LarSee Thul v. Ochsenreiter (Minn.) 75 N. W. 4. son, knew of this, and was informed by plainIf by defendant's answer she intended to deny tiff, Sharpe, that he did not, at which Furuthe value of the materials furnished and the seth remarked that probably he (Furuseth) work and labor performed, the averment was had better tell him (Larson). Sharpe then clearly bad as a negative pregnant, for the said, “No; don't do that. We can beat him answer would have been technically true if out of that appeal.” It also appeared that plaintiffs' claim was a single cent too great. Furuseth had told defendant of this conversa

Admitting, without deciding, that the pro- tion before the article herein involved was posed amended answer was an improvement published, and also that, at defendant's reupon its predecessor, the court below did not quest, Furuseth had made an affidavit as to abuse its discretion when it denied defend- what was said by plaintiff, Sharpe, and himant's motion for leave to amend, made after self on this occasion, and had delivered it to the original answer had been shown to be defendant. This affidavit was introduced in sham and false, and had been stricken out for evidence at the trial, and was the affidavit these reasons. Judgment affirmed.

mentioned in the published notice. Because of this evidence the court below was requested to charge the jury, in effect, that if they

found that plaintiff, Sharpe, told Furuseth not SHARPE v. LARSON.

to tell defendant, Larson, that his notice of (Supreme Court of Minnesota. Nov. 29, 1898.)

appeal was worthless, this circumstance might ActioN FOR LIBEL-EVIDENCE-DAMAGES. be considered in mitigation of damages. The 1. Any circumstance appearing by the evi. court refused so to charge, defendant's coundence on the trial of an action of libel or slander which tends to lessen or overcome the pre

sel excepting, and there is no claim that the sumption of malice should be considered by the substance of this request was elsewhere giv. jury in mitigation of damages, and a charge en to the jury. It was error for the court of the court, or a refusal to charge, which de

below to refuse to charge the jury as requestprives a defendant of the benefit of such evidence, is erroneous.

ed. If the fact that Furuseth had, prior to 2. Held, in the case at bar,-an action for li- the publication, informed defendant of the bel.-that the verdict in plaintiff's favor for conversation with Sharpe, and had also fur$750 was excessive in amount.

nished to him an affidavit as to what the lat(Syllabus by the Court.)

ter had said, was not available as a complete Appeal from district court, Norman county; defense in the action, it bore upon the quesFrank Ives, Judge.

tions of malice and damages. Gen. St. 1894, Action by Peter Sharpe against B. B. Lar- $ 5258, provides that in an action for libel or son. Verdict for plaintiff. From an order

slander the defendant may, in his answer, aldenying a new trial, defendant appeals. Re- lege both the truth of the matter charged as versed.

defamatory, and any mitigating circumstanOle J. Vaule, for appellant. W. W. Calkins ces, to reduce the amount of the damages. and H. Steenerson, for respondent.

Therefore any circumstance appearing in the

evidence which tended to lessen or overcome COLLINS, J. Action for libel, in which the presumption of malice on defendant's part plaintiff had a verdict for $750. From an or

should have been considered by the jury in der denying his motion for a new trial, de

mitigation of damages. By the refusal to fendant appeals.

charge as requested, defendant was deprived The substance of the libelous publication

of the benefit of this circumstance, and a new sufficiently appears in an opinion written on

trial must be had. We deem it incumbent a former appeal, at which time it was held

upon us to now say, in view of another trial, that the complaint herein contained facts suf

that the verdict rendered was greatly exficient to constitute a cause of action. Sharpe

cessive in amount. Order reversed. v. Larson (Minn.) 72 N. W. 961. And the case referred to in the publication was that disposed of by the court on appeal in an earlier action between these same parties; the opinion

SIMMER v. BLABON. being found in 67 Minn. 428, 70 N. W. 1, 554.

(Supreme Court of Minnesota. Nov. 30, 1898.) The Ole Furuseth mentioned was the justice

MORTGAGE FORECLOSURE-SURPLUS—BURDEN of the peace from whose decision the defend

OF PROOF. ant attempted to appeal to the district court, On the trial of an action to recover a surand who prepared the defective notice which plus in the hands of a mortgagee after a foreclosure sale, it appeared from the foreclosure taxes due on March 26, 1892, and the interest proceedings, under the power of sale, that he thereon to the date of sale. In the absence of claimed in the notice of sale, and in the affdavit of costs and disbursements, that certain

any assertion in the foreclosure proceedings sums were due for taxes, but he did not any

that he has paid such taxes, we are clearly of where state that he had paid any such taxes. the opinion that the burden was on him in this Held, the burden was on him to show that he

action to prove that he had paid them. He had paid them. Whether, if he had so stated, the burden would be on the plaintiff, quære.

has not maintained that burden, and the order (Syllabus by the Court.)

appealed from is therefore reversed, and a

new trial granted. Appeal froin district court, Hennepin county; William A. Lancaster, Judge.

Action by Gertrude Simmer against George W. Blabon. Verdict ordered for defendant.

GRAY 7. BLABON. From an order denying a new trial, plaintiff

(Supreme Court of Minnesota. Nov. 30, 1898.) appeals. Reversed.

MORTGAGE FORECLOSURE-ACTION FOR SURPLUSSmith & Smith, for appellant. Brooks &

EVIDENCE. Hendrix, for respondent.

In an action by an assignee of a second mortgage to recover a surplus arising from a

foreclosure sale on the first mortgage, the anCANTY, J. This is an action brought by swer denied the execution of the second mort. the grantee of the mortgagors of a city lot gage. It was introduced in evidence on the against the mortgagee to recover a surplus re

trial, but the promissory note referred to in

such second mortgage, and secured by it, was maining in his hands after paying all sums

not introduced in evidence or its absence acwhich he had a right to retain on a foreclosure counted for. Held a fatal defect in plaintiff's sale under the mortgage. The foreclosure was proof, and judgment was properly ordered for made under the power of sale contained in the


(Syllabus by the Court.) mortgage, and the notice of sale states: “Default having been made in the payment of

Appeal from district court, Hennepin coun$253.91 interest money, and $229.72 taxes,

ty; William A. Lancaster, Judge. which is claimed to be due at the date of this Action by L. Gray against George W. Blanotice." It appears by the affidavit of costs

bon. Verdict for defendant. From an order and disbursements that the property was bid refusing a new trial, plaintiff appeals. Afin at the sale for the full amount of the prin

firmed. cipal and interest, costs, and disbursements, Smith & Smith, for appellant. Brooks & and also the following items:

Hendrix, for respondent. “Amount of taxes due March 26, 1892

$229 72

CANTY, J. This action is similar to SimInterest to date of sale.

1 92

mer v. Blabon (filed herewith) 77 N. W. 233, $231 61" except that this action is brought by the as

signee of the second mortgage. The answer The action was brought to recover this lat

denied, on information and belief, that any ter sum on the theory that defendant had no

such mortgage had been executed. On the right to retain it. On the trial the foreclosure

trial plaintiff introduced the second mortgage proceedings, including said affidavit of costs

in evidence, and the assignment of it to himand disbursements, were introduced in evi-

self, but he did not introduce in evidence the dence, and also tax receipts dated 11 days after

promissory note referred to in that mortgage the day of the foreclosure sale, but the de

and secured by it, or account for the absence scription of the property in the receipts is fa

of that note. The execution of the note and tally defective. However, for the purposes of

the transfer to him were not admitted. In this case, we regard that as immaterial. On

our opinion, there was a fatal defect in his this state of the evidence the court ordered a

proof. He was in fact suing to recover the inverdict for defendant, and from an order deny.

debtedness for which the note was given. If ing a new trial plaintiff appeals.

he brought suit on the note, he would have Defendant contends that the burden was on

to produce it on the trial or account for its plaintiff to show that defendant had not paid

absence. He would have to do likewise if taxes for which he is entitled to retain this

he brought an action to foreclose the second $231.64, and plaintiff contends that the burden

mortgage, and this is, in effect, such an acwas on defendant to show that he had paid

tion. The order appealed from is affirmed. such taxes. We need not consider where the burden of proof would be if the defendant either in his notice of foreclosure sale, or in his affidavit of costs and disbursements, or in both, had stated that he had paid the taxes for

RICHARDSON V. MERRITT. 1 which he claims the right to retain the $231.64. (Supreme Court of Minnesota. Nov. 30, 1898.) He has not so stated. In the notice he simply PRINCIPAL AND SURETY--RIGHTS INTER SEstated that default had been made in “$229.72

SET-Off. taxes, which is claimed to be due at the date

1. The surety of an insolvent principal was

indebted to the principal. This action was of this notice." In the affidavit of costs and

brought to recover such debt. He pleaded in disbursements he simply stated the amount of his answer that an action had been brought

1 For opinions on petition for reargument, see 77 N. W. 407 and 968.

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