STATE v. MERCHANTS' BANK OF LAKE CITY et al. (KENNEBECK et al., Interveners).

(Supreme Court of Minnesota. Nov. 10, 1898.)

STIPULATION FOR JUDGMENT.

All of the parties to the action but one entered into a stipulation for judgment which ignored the rights of such other party, and the court ordered judgment accordingly, which was then entered. On the appeal of such other party, held, the judgment should be reversed as to her.

(Syllabus by the Court.)

Appeal from district court, Wabasha county; Arthur H. Snow, Judge.

Action by the state against the Merchants' Bank of Lake City and others. Herman B. Kennebeck and Mrs. Pierce intervene. From the judgment, Mrs. Pierce appeals. Reversed.

McGovern & Murdoch, for appellant. Henry W. Morgan, Wesley Kinney, A. J. Greer, Geo. H. Selover, Douglas A. Fiske, and Geo. H. Hammond, for respondents.

CANTY, J. This is an action, under chapter 76, Gen. St. 1894, to wind up an insolvent corporation. A supplemental complaint was filed to enforce the stockholders' superadded liability, and 258 creditors, including this appellant, intervened and set up their claims. The case was partly tried, and adjourned to a later day. In the meantime the other 257 creditors entered into an agreement with the stockholders who were made defendants, by which it was agreed that judgment might be entered in favor of said other 257 creditors and against said stockholders for the full amount of their double liability, and that the judgments so entered should be satisfied on the payment of certain specified amounts, being in the aggregate 60 per cent. of the amounts of the judgment so to be entered. This appellant was not a party to that agreement. The court subsequently made its findings of fact and conclusions of law, in which it found the amount due each of the 258 creditors, recited said agreement, and ordered judgment pursuant thereto. From the judgment entered thereon this appeal is taken, and it is contended that the judgment is not supported by the findings of fact. It appears by the findings that the amount of indebtedness is much more than such 60 per cent. will pay, but nevertheless the judgment provides that the amount so adjudged against each stockholder shall be satisfied on payment of the amount which the agreement stipulates he may pay in satisfaction of the same as aforesaid. It is further adjudged that, after paying the expenses of administration out of the sums so paid in, the balance shall be distributed ratably among all of the 258 creditors. While the agreement is binding on all the creditors who entered into it, it is not binding on this appellant, who is not a party to it. As to her the judgment

is erroneous. Some of the creditors gave a bond to indemnify the stockholder defendants against the claim of this appellant. We will not prescribe the modification to be made to the judgment, but will remand the case to the court below, with directions to modify the judgment in accordance with this opinion, after notice to the parties. It is so ordered.

RHONE v. LOOMIS.

(Supreme Court of Minnesota. Nov. 14, 1898.) CIVIL RIGHTS-SALOONS-PLACE OF REFRESHMENT. 1. Saloons, or places where intoxicating liquors are sold as a beverage, are not within the provisions of Gen. Laws 1885, c. 224 (Gen. St. 1894, §§ 8002, 8003), as amended by Gen. Laws 1897, c. 349.

2. Rule of ejusdem generis applied to the interpretation of the general words, "or other place of refreshment."

Start, C. J., and Collins, J., dissenting. (Syllabus by the Court.)

Appeal from municipal court of Duluth; W. D. Edson, Judge.

Action by Edward T. Rhone against Robert N. Loomis. Verdict for plaintiff. From an order refusing a new trial, defendant appeals. Reversed.

John G. Williams, for appellant. John H. Norton, for respondent.

MITCHELL, J. The plaintiff, who is a colored man, brought this action against the defendant, who is a legally licensed saloon keeper, to recover damages for his refusal, solely because of plaintiff's race and color, to furnish him a glass of beer, when called for in defendant's place of business. The action is brought under the provisions of Gen. Laws 1885, c. 224 (Gen. St. 1894, §§ 8002, 8003), as amended by Gen. Laws 1897, c. 349. The material parts of the act read as follows: "A person who excludes any other person within the jurisdiction of the state of Minnesota, on account of race, color or previous condition of servitude, from the full and equal enjoyment of any accommodation, advantage, facility or privilege, furnished by innkeepers,, hotel keepers, managers or lessees, common carriers or by owners, managers or lessees, of theaters, or other places of amusement, or public conveyance on land or water, restaurants, barber shops, eating houses, or other places of public resort, refreshment, accommodation or entertainment, or denies or aids or incites another to deny to any other person because of race, creed, or color, or previous condition of servitude, the full and equal enjoyment of any of the accommodations, advantages, facilities and privileges of any hotel, inn, tavern, restaurant, eating house, soda water fountain, ice cream parlor, public conveyance on land or water, theater, barber shop or other place of public refreshment, amusement, instruction, accommodation or entertainment, is

guilty of a misdemeanor, punishable by a fine of not less than twenty five (25) dollars, nor more than one hundred (100) dollars, or imprisonment in the county jail for not less than thirty (30) nor more than ninety (90) days. And in addition to the punishment prescribed herein he is liable in damages, in a sum not less than twenty five (25) nor more than five hundred (500) dollars to the party aggrieved, to be recovered in a civil action."

The two principal points made by defendant's counsel are: (1) If the act is broad enough to include a saloon, or place where intoxicating liquors are sold, it is unconstitutional, being an undue interference with defendant's private business. (2) That a saloon, or place where such liquors are sold, is not within the provis.ons of the statute.

The act is a "civil rights statute," the expressed object of which is to protect all citizens in their civil and legal rights. The power of the legislature to enact such laws, as to all kinds of business, of a public or quasi public character, conducted for the accommodation, refreshment, amusement, or instruction of the public, and which the state has the right to regulate under its police power, so that all classes of citizens may enjoy the benefit thereof without unjust discrimination, is no longer open to discussion. That places where spirituous, vinous, and malt liquors are sold to the public, which exist wholly under the authority of state laws, would fall within this class, we think there can be no doubt. See Cooley, Torts, 285; People v. King, 110 N. Y. 418, 18 N. E. 245. The question is whether by the act referred to the legislature has exercised that power as to saloons, or licensed places for the sale of intoxicating liquors at retail. In view of the nature of the traffic, and the uniform trend of our legislation on the subject, we would hesitate to hold that the legislature had made it a crime under any circumstances for one man to refuse to furnish another intoxicating liquor for use as a beverage, unless the provisions of the act so provided with reasonable certainty. All legislation on the liquor traffic is restrictive and repressive, and seems to proceed upon the theory that it is an evil, and should be restricted to the smallest practicable limits. It can be conducted only under a license, the fee for which is far greater than the expense of police supervision, and was put thus high for the very purpose of limiting the business as far as possible. In this act, as amended, the legislature specifically enumerates the places and things to which its provisions should apply at great length and with great particularity, even to naming "soda water fountains" and "ice cream parlors," but nowhere mentions saloons, or places where intoxicating drinks are sold. This omission could not have been because the legislature did not have such places in mind, for of all places, whether of entertainment, refreshment,

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amusement, or instruction, saloons are the most numerous. In fact, they are more numerous, and the subject of more legislation, than all the places enumerated in the act put together. It therefore seems to us that the omission to enumerate saloons must have been ex industria. But it is said (and this is the sole claim of the plaintiff) that they are included in the general words, "or other places of public * refreshment." We concede that the word "refreshment" may include intoxicating liquors, and that the words "place of refreshment" may be used in such a connection as to include a place where such liquors are sold as a beverage. But here is a case where the legislature has specifically enumerated, in a somewhat descending order according to rank or importance, every kind of place of refreshment which was presently in mind to which they intended the act to apply, but have omitted, apparently purposely, to enumerate places where intoxicating liquors are sold as a beverage. Such places, conceding them to be places of refreshment, are sui generis,-of a quality essentially different from, and much more numerous than, any of those specifically enumerated. We are of opinion that upon these facts it is not permissible, under any proper application of the doctrine of ejusdem generis, or what is commonly called "Lord Tenterden's rule," to extend, the meaning of the general words, "or other public place of refreshment," so as to include places where intoxicating drinks are sold. This rule, generally stated, is that where a statute or document specifically enumerates several classes of persons or things, and immediately following, and classed with such enumeration, the clause embraces "other" persons or things, the word "other" will generally be read as "other such like," so that persons or things therein comprised may be read as ejusdem generis "with," and not of a quality superior to or different from, those specifically enumerated. See Sandiman V. Breach, 7 Barn. & C. 99; also, 17 Am. & Eng. Enc. Law, p. 278, tit. "Other." The reason of this rule is that "if the legislature had meant the general words to apply, without restriction, it would have used only one compendious word." Rex v. Wallis, 5 Term. R. 379. Reasons can be readily conceived of why the legislature might have seen fit to exclude saloons from the operation of the act. It being a "civil rights" act, the object of which was to secure to all citizens equal accommodation, without unjust discrimination, in certain places of entertainment, amusement, etc., the legislature might have thought that the right to be furnished intoxicating drink would be of doubtful benefit to any class of people, and for that rea son excluded saloons from the operation of the act. It is a well-known fact that, owing to an unreasonable race prejudice which still exists to some extent, the promiscuous entertainment of persons of different races in

places where intoxicating drinks are sold not infrequently results in personal conflicts, especially when the passions of men are inflamed by liquor. Hence the legislature might have omitted saloons for that reason. But, whatever the reason may have been, we are of opinion that, under the established canons of construction, it must be held that the legislature has excluded them, and that the general words do not, and were not intended to, include them. Order reversed, and cause remanded, with instructions to the lower court to dismiss the action.

START, C. J. I dissent. The plaintiff is a colored man, sometime a slave, but now a citizen of the state of Minnesota. The defendant is a licensed saloon keeper in the city of Duluth. The plaintiff, in company with a white man, and upon his invitation, entered the defendant's saloon, who was requested to serve them with beer. He served the white man, and refused to serve the plaintiff, solely on the ground of his race and color. This action was brought to recover damages for the personal indignity, under the civil rights act of the state set forth in the majority opinion. The statute is conceded to be constitutional, and the only question is whether this case is within its purview. I admit that the failure to specifically mention "saloons" in the statute is an important fact to be considered in construing it; but if, notwithstanding this fact, its meaning is clear, and it is manifest that the legislature intended to place saloons within the statute, then we must give effect to such intention. The question is not whether there are or are not good reasons why the statute ought not to apply to saloons, but does it? Two reasons are suggested in the opinion of the court why the statute ought not to be construed as applicable to saloons. The first is that legislation on the liquor traffic is restrictive, and seems to proceed upon the theory that it is an evil, and should be restricted to the smallest practical limits. Granted; but this is no reason why the basis of limitation should be creed or color, or why saloons should be licensed and policed for the exclusive benefit of the white race. The statute does not make it a crime for one man to refuse to furnish another with intoxicating liquor, but it makes it a misdemeanor to discriminate against him, on account of his color, by denying him for such reasons privileges which are granted to others. The second reason suggested is that the promiscuous entertainment of persons of both races in places where intoxicating liquors are sold is liable to result in disorder and personal conflict. But it would seem that discriminations in such places on account of color or creed would be quite as likely to provoke breaches of the peace as the enforce77 N.W.-3

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ment of equality as to privileges therein would be. However this may be, it is certain that the legislature did not regard the suggested reason a good one, for the statute expressly specifies places where intoxicating liquors are sold. It provides, with other matters, that any one who denies to any person, because of race, creed, or color, or previous condition of servitude, "the full and equal enjoyment of the accommodations and privileges of any restaurant, or other place of public refreshment or accommodation," shall be guilty of a misdemeanor. The statute was intended to cover places other than those specifically mentioned. Effect must be given to the general terms, and other places held to be within the purview of the statute. What other places of refreshment and accommodation? Clearly places of the same general class or kind as those specially enumerated. Now, a restaurant and saloon are ejusdem generis, when the words are used in their popular meaning, as they are in this statute. They are places to which the public are invited for refreshments in the form of food or drink, or both, as is often the case with restaurants. Why saloons are not specially named in the statute, I do not know, unless it was for the purpose of emphasizing the legislative intent as to them. But, whatever may have been the reason, I am of the opinion that the statute will not admit of any reasonable construction which will exclude saloons from its general terms.

sent.

COLLINS, J. I am also compelled to disThe purpose of the statute, if it has any at all, is to confer equal rights upon the colored man in all public places. It expressly provides that colored persons shall have equal accommodations, advantages, privileges, and facilities at all inns, hotels, and restaurants, and "other places of public resort, refreshment, accommodation, or entertainment." In view of this positive enactment, would it be held that an inn or an hotel or a restaurant, in which liquors are kept for the express purpose of serving at the tables when called for, could lawfully, refuse to furnish those articles to a man, properly seated at table, because of his color? I think not; and, if so, it seems as if the saloon is to be regarded as a sort of a sanctuary, not to be profaned by the admission and entertainment of the colored man. I am quite sure that all of the objections urged against the mingling of the races in the saloon are equally as potent when the same people are brought together in any place where liquors are served as a beverage. I am decidedly of the opinion that the saloon is one of the "other places of public resort, refreshment, accommodation or entertainment" mentioned in the law. If it is not, what place is?

SCHEERSCHMIDT v. SMITHI. (Supreme Court of Minnesota. Nov. 14, 1898.) PAROL EVIDENCE-MEASURE OF DAMAGES-CONTRACT OF SALE-UNLAWFUL EVICTION.

1. While a written contract, within the statute of frauds, cannot, so long as it remains executory, be altered orally, so as to bind the parties, as a part of the contract, yet evidence is admissible to prove an oral waiver of performance according to the terms of the contract as a ground of forfeiture, as, for example, by orally agreeing to extend the time of payment.

2. Defendant executed to plaintiff a contract by which he leased the premises to the plaintiff for a term of years, at a fixed annual rent, and agreed to sell and convey the premises to him at the end of the term for an agreed price. During the term the defendant broke the contract by declaring it forfeited and evicting the plaintiff. Held, that the measure of plaintiff's damages was the difference between the value of the land at the time of the eviction and the sum which plaintiff agreed to pay for it.

(Syllabus by the Court.)

Appeal from district court, Blue Earth county; M. J. Severance, Judge.

Action by Casper F. Scheerschmidt against O. P. Smith. Verdict for plaintiff. From an order refusing a new trial, defendant appeals. Affirmed.

H. L. Schmitt and Lorin Cray, for appellant. Pfau & Pfau and Thos. Hughes, for respondent.

MITCHELL, J. In February, 1895, the defendant executed to plaintiff a lease and contract of sale of certain lands, under which the plaintiff went into possession. Thereafter defendant, claiming that plaintiff had defaulted in performance of its conditions, canceled the contract, and resumed possession of the land. Plaintiff thereupon brought this action for damages for the breach of the contract by the defendant.

The terms of the contract of lease and sale were that in consideration of $250, to be paid annually in advance on the 1st day of March of each year, the defendant leased the land to the plaintiff for the term of three years, beginning March 1, 1895; that at the expiration of this time the defendant should sell, and the plaintiff should buy, the land for $3,500. The contract provided that, if for any reason the plaintiff was unable to pay the $250 in advance on the 1st of March of any year during the term, he should give the defendant good security for its payment at such time as the parties might agree. It further provided that, if the plaintiff should default in any of its conditions, it should be lawful for the defendant to declare the contract null and void, and any improvements made on the land or moneys paid on the contract of the plaintiff should be considered as settled and liquidated damages, and should belong to the defendant. Plaintiff went into possession, and paid the $250 for the first year, the defendant not insisting on strict performance as to the time of payment. The plaintiff introduced evidence tending to prove

that about the middle of February. 1896, he interviewed the defendant, and inquired of him if he wanted his money on March 1st, stating that he did not want to sell his stock until June; that defendant orally replied that it was all right; that plaintiff should have until June to pay the money; that plaintiff, in reliance on this arrangement, omitted to pay the money on March 1st; that the next thing which he heard from the defendant was a postal card dated March 10th, requesting payment of rent due March 1st; that on receipt of this notice he went into town, and offered to pay the defendant $212 of the amount, but that defendant declined to accept the money, saying that he had no time then to attend to the matter, but would shortly come out and see the plaintiff. On March 12th defendant sent to plaintiff a written notice that the contract "is hereby declared null and void, and of no effect, and you are further notified that you are hereby prohibited from the said premises, or doing or performing any act or work thereon." Almost immediately after giving this notice the defendant evicted the plaintiff, by resuming possession of the premises, and proceeding to plant and crop them himself. The evidence tends quite strongly to prove that the main reason why defendant attempted to declare the contract forfeited was that the land had greatly risen in value since the contract was executed. It appears that at or about this same time defendant had bargained to sell the land to another person for $1,100 advance over the price which plaintiff had agreed to pay. Another ground for forfeiture of the contract set up in the answer, and upon which some evidence was introduced on the trial, was that the plaintiff was guilty of waste in cutting a small amount of standing timber on the premises. We doubt whether, upon the law and evidence, there was anything to submit to the jury on this issue; but the trial court did submit it to them, and they found against the defendant. In this court defendant's counsel claims nothing on this point, but relies, as he necessarily must, as a ground for declaring the contract forfeited, on plaintiff's failure to pay the $250 on due day, March 1, 1896. The court instructed the jury that, if they found for the plaintiff, the measure of his damages would be the difference between the value of the land at the time of the eviction and attempted annulment of the contract in March, 1896, and the price ($3,500) which plaintiff was to pay for it. While the assignments of error are quite numerous, the case presents only two legal questions of any importance, viz.: (1) Whether evidence was admissible to prove an oral waiver by defendant of payment of the $250 on March 1st, and an oral promise to extend the time until June; and (2) whether the court adopted the correct measure of damages.

1. The contention of defendant's counsel is that, inasmuch as the contract was within the statute of frauds, it could not be altered or varied by parol. The law seems to be well

settled that an oral variation of a written contract within the statute of frauds, though made in respect of a particular which might, If standing alone, be good by parol, cannot be available as a part of the contract, so long as the whole contract, embracing that which is required to be in writing as well as that which is not, remains executory. Browne, St. Frauds, § 420. Hence this oral extension of the time of payment became no part of the contract so as to bind the parties. Because it was not in writing, as well as because there was no consideration for it, defendant might have repudiated it and demanded payment at any time. But in such case he could not declare the contract forfeited for nonpayment until the plaintiff had a reasonable time thereafter in which to make payment, because the failure to pay on due day was caused by the defendant's own conduct. Undoubtedly plaintiff must recover, if at all, on the written contract. But the distinction must be kept in mind between the contract itself, which is within the purview of the statute, and the subsequent performance, which is not. The oral stipulation for an extension of the time of payment goes simply to the question of performance, constituting an excuse, as it does, for the failure to perform according to the terms of the written contract, and a reason why the defendant had no right to declare a forfeiture on account of such failure. Courts have often indulged in some refined reasoning as to the grounds of the rule. but they seem to generally agree that, even as to contracts within the statute of frauds, a waiver of a forfeiture for nonperformance, according to the terms of the written contract, may be proven by parol. Perhaps as good a ground as any upon which to put the rule is that of equitable estoppel, that he who prevents a thing being done shall not avail himself of the nonperformance which he himself has occasioned. What has been already said sufficiently covers the point made by defendant's counsel, that there was no consideration for the promise to extend the time of payment. Neither is there anything in the suggestion that, although there might have been a waiver as to the time of payment, there was none of the condition of the contract that security should be given. No security was asked for, and the extension was not conditional upon plaintiff giving security.

2. The plaintiff had a right to take the defendant at his word, and consider the contract at an end. The breach was total, and the plaintiff had to recover his entire damages, once for all, in this action. What he was entitled to was compensation for the loss of his bargain. This would be the difference between the value of the land at the time of the eviction and what he agreed to pay for it. We had occasion to carefully examine the authorities on this question in Fleckten v. Spicer, 63 Minn. 454, 65 N. W. 926. Had the breach of the contract by the declaration of

forfeiture and the eviction not occurred until the date at which the conveyance was to be executed, the value of the land at that time would have been the proper basis upon which to measure plaintiff's damages; but there having been a total breach, and an eviction, before that time arrived, his damages must be measured as of the date of breach.

3. The amount of the verdict is perhaps somewhat liberal, but we are unable to say that it was not justified by the evidence. Taking into account interest on the amount of the damages from the date of eviction to the date of the trial, the jury found the value of the land at the former date only a few cents over $40 per acre. This is supported by the testimony of the witnesses who testified as to value. We have examined the record with reference to the various other rulings on the trial which are assigned as error, and find that all of these rulings were either correct, or, at most, error without prejudice. These assignments of error are so numerous and unsubstantial that we do not feel called upon to discuss them. Order affirmed.

The cashier of the defendant shipped for the plaintiff, in the name of the bank, a car load of wheat to Duluth, to be sold on account of the plaintiff. The wheat was sold, and the proceeds remitted to and received by the defendant bank. Held, that although the cashier, in shipping and selling the wheat for the plaintiff in the name of the bank, acted beyond the scope of his authority, yet the bank, having received the proceeds, is bound to account for them to the plaintiff, and the fact that it has, through the mistake of its cashier, paid over the money to another party, is no defense. (Syllabus by the Court.)

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

Action by Peter G. Landin against the Moorhead National Bank of Moorhead. From a judgment for plaintiff, defendant appeals. Affirmed.

C. A. Nye (N. I. Johnson, of counsel), for appellant. F. H. Peterson, for respondent.

MITCHELL, J. The facts were that defendant's cashier shipped in the name of the bank a car load of wheat to Duluth for sale on account of the owners, who were plaintiff's brother and one Foote. This wheat was sold, but never paid for; the bank upon which the purchaser gave the check for the purchase price having failed before the check was presented for payment. Very shortly after the shipment of this car, the cashier shipped, also in the name of the defendant, another car load of wheat to Duluth for sale on account of the plaintiff, who was the owner. This wheat was sold and paid for. The cashier, assuming that the money was