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Pago ors, Brown Walton v. Ambler (Neb.).

931 678 Walton v. Doll (Neb.)..

931 lie County v. Ward, •Swift v. (Iowa).

.1044 .1090 Warren, Farwell v. (Wis.).....

.. 217 .... 679 Washtenaw Circuit Judge, Snyder v. 679 (Mich.)..

596 412 Webb, Hill v. (Minn.).....

..1133 (Wis.). .....1128 Wedgwood v. Citizens' Nat. Bank of Grand 619 Island (Neb.)......

.. 289 ch.); 179 Weigel v. City of Hastings (Neb.)..

694

883 gan v. (Mich.).... 502 Welch, People v. (Mich.).

482

406 Town of Ja (Mich.)......1014 Weirs v. Jones County (Iowa).. v. (Mich.). ..., 831 Wellauer, Schweppe v. (Wis.).

17 |

427 TOW CO. V. (Iowa)..... 757 Weller v. Hammer (Minn.). Wentler, State v. (Wis.)..

816 Top fornia Ing. Co. of

703 West, Grand Island Gas Co. v. (Neb.) ..... 242 AIDS: V. Seymour.. 826 Westchester Fire Ins. Co., Hannan v. 530 (Mich.).....

..1122 221 Western Transit Co., Haley v. (Wis.)...... 16 790 Weston v. Incorporated Town of North 742 Des Moines (Iowa). ..

..1031 ich.)....... ...1012 Weston, Smith v. (Iowa)..

..1031 tional Church v. Whaley, Game v. (Minn.)..

228 10. (Wis.)........1086 Whaley, Pieotter v. (Mich.)..

81 88 Wheeler v. Wheeler (Wis.)..

531 867 Wheeler, Mershon v. (Wis.).

95 758 Whetstone V. Beloit Straw Board Co. 411 (Wis.)....

535 ...... 644 Whicher, Pulford v. (Wis.).

418 688 White, Lombard v. (Wis.)

420 White, State v. (Neb.)..

.. 631 ,0 & G. T. Ry. Co. Whiting v. Mississippi Val. Mut. Ing. Co. 508 (Wis.)..

672 er Co. v. Pelican Boom Whitney v. Preston (Neb.).

.. 619 18 Whitney v. Swensen (Minn.)....

609 ist. No. 1 of Pine River & Whitney v. Traynor (Wis.).

530 400l-Dist. No. 1 of Pine River Whitworth v. Detroit, L. & N. R. Co. 993 (Mich.)........

.. 500 sés, Velte v. (Wis.)..

119 Wilcox v. Loominster Nat. Bank (Minn.). .1136

Wilcox v. Township of Eagle (Mich.)...... 987 at. Bank v. Jackaway (Iowa)..... 881 Wildman v. Sterritt (Mich.).

657 Nat. Bank v. Johnson Directory Co. Wilkins v. Bell (Minn.)....

160 ga)... ..1076 Wilkins v. Bevier (Minn.)..

157 Aplew v. Chambers (Neb.).

268 Wilkins v. State Îns. Co. of Des Moines mplew v. Chambers (Neb.).. .1103: (Minn.).....

1 an Aken v. Coldren (Iowa) 873 Wilkinson v. Severance (Iowa).

724 Van Akin v. Welch (Iowa).. 406 Willard v. Wright (Iowa).

886 Van Dusen, Hecock v. (Mich.).... 343 Willes v. Smith (Wis.).....

666 Van Gent v. Chicago, M. & St. P. Ry. Co. William Deering & Co., Clark v. (Neb.).... 456 (Iowa)....

913 Williams v. Journal Printing Co. (Minn.). .1133 Van Leyen v. Wreford (Mich.)

.1116 Williamsburgh City Fire Ing. Co., Hannan Van Slyke v. Chicago, St. P. & K. C. Ry. v. (Mich.)...

..1120 Co. (Iowa).

396 Willits v. Chicago, B. & K. C. Ry. Co. Van Winkle, State v. (Iowa)... 388 (Iowa)...

916 Veeder, Esterly Harvesting Mach. Co. v. Willits, Morris v. (Neb.)...

784 (Neb.) ..1103 Willoughby, Lewis v. (Minn.)..

49 Velte v. United States (Wis.). 119 Wilson v. Atkin (Mich.)....

94 Vieth, Benjamin v. (Iowa). 731 Wilson v. Estate of Hotchkiss (Mich.).

838 Village of Cedar Springs v. Schlick Wilson v. Gunning (Iowa)....

.. 920 (Mich.).. 994 Wilson v. Hooser (Wis.). .

.. 316 Village of Markesan, McCracken v. (Wis.) 323 Wilson v. Northern Pac. R. Co. (Minn.)...1132 Village of West Branch, O'Neil v. (Mich.)..1023 Wilson v. Wilson (Mich.)...

184 Vogely v. Bloom (Minn.). 10 Wilson v. Wilson (Minn.). .

.. 710 Voss, State v. (Iowa). ...

898 Wilson, Cleveland Co-op. Stove Co. v. (Iowa)

897 Wadhams Oil & Grease Co. v. Brung Wilson, De Long v. (Iowa).

764 (Minn.). 444 Wilson, Kallsen v. (Iowa).

765 Wadleigh v. Standard Life & Accident Ins. Wilson, Tuttle v. (Neb.).

688 Co. (Wis.)... 109 Winsor, Greeley v. (S. D.)...

325 Wadsworth v. Blake (Minn.).... .1131 Winston v. Johnson (Minn.)...

.. 958 Walkeen, Culley v. (Mich.)..

368 Winter v. Central Iowa Ry. Co. (Iowa). ... 737 Walker v. Freelove (Iowa) 303 Wolf v. O'Connor (Mich.).

.1117 Walker, Hanley v. (Mich.) 57 Wolf, Ducett v. (Mich.)..

829 Walker, Krueger v. (Iowa) 871 Wolverton v. McCabe (Mich.).

830 Walrod v. Walrod (Iowa). 755 | Wonn's Estate, In re (Iowa).

..1063 Walsh, State v. (Minn.)..

721 Wood v. Michigan Cent. A. L. R. Co. Walter, Pearl v. (Mich.). 181 (Mich.)...

980 Waltman, Stevenson v. (Mich.)... 825 | Wood, In re (Mich.)...

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Woodard v. Grimths-Marshall Grain Com- Wuchner, Killme.
mission Co. (Minn.).....

488 | Wyman, Lathers v.
Woodruff, Devore v. (X. D.)..

701 Wyvell v. Barwise Woolfolk v. Bruns (Minn. )

444 Wroford, Van loyon v. (Mich.).

,1116 Yaggy v. District Tp.' Wright v. Wrighi (Mich.)

3135 Yeoman, Smith v. (low Wright, Alderton v. (Mich.).

968 Yerger, Blake v. (Iowa. Wright, Cobbey v. (Seb.)...

460 Yordy v. Marshall Count Wright, Willard v. (Iowa)..

886 1 Young. Skinner v. (Iowll).

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(43 Minn. 177) WILKINS V. STATE INS. CO. OF DES MOINES. son dealing with an agent possessing the (Supreme Court of Minnesota. April 24, 1890.)

powers exercised by this agent has a right INSURANCE-AUTHORITY OF AGENT—NOTICE TO IN

to assume, in the absence of notice to the

contrary, that he has authority, pending SURED. The rule that if an agent exceeds his actual

negotiations for a contract of insurance, to authority, and the person dealing with him has no

waive a provision like the one quoted, and tice of the fact, the principal is not bound, applied

to give a short credit for the premium. to a case where a local agent of a fire insurance But it is the undoubted right of the comcompany assumed to waive a provision in the pol- pany, as in the case of any principal, to icy that “no insurance would be binding until act- impose a limitation upon the authority of ual payment of the premium;" the policy itself its agents. And it is as elementary as it containing a provision that none of its terms could

is reasonable that if an agent exceeds his be waived by any one except the secretary of the company.

actual authority, and the person dealing (Syllabus by the Court.)

with him has notice of that fact, the princi

pal is not bound; and it is upon this propAppeal from district court, Rice county;

osition that defendant

defendant chiefly relies. BUCKHAM, Judge.

There are two provisions in the policy to M. H. Keeley, for appellant. A. D. which he refers in support of his contenKeyes, for respondent.

tion. The first is that "no officer, agent,

or representative of the company, shall be MITCHELL, J. The defendant, an Iowa held to have waived any of the terms or corporation, but doing business in this conditions of this policy unless such state, had an agent at Faribault, whose waiver shall be indorsed thereun.” Folgeneral duties were to solicit insurance, lowing Lamberton v. Insurance Co., 39 fill up the blanks in printed policies al- Minn. 129, 39 N. W. Rep. 76, which is abunready signed by the general officers of the dantly supported by the authorities. This company, and left in his possession, coun- contains no limitation upon the authoritersign, and deliver the same, and collect ty of any class of agents, prohibiting and remit the premiums. It is undisputed them from waiving any of the terms or in the evidence that this agent, having so- conditions of the policy. It applies alike licited the plaintiff for insurance on his to all representatives of the company,-exstock, and the plaintff being unable then ecutive or general officers as well as othto pay the premium, assumed to waive ers; and, so far as it assumes to be a lim. immediate payment, and to give plaintiff itation at all, it is upon the company ita temporary credit for the premium, and self, to the effect that it can only waive delivered to him the policy on which this the conditions of the policy in a certain action is brought. The agent subsequent way, or, rather, it assumes to provide ly called on the plaintiff at least twice for what shall be the exclusive evidence of the premium, but the latter failed to pay; such waiver. This provision, therefore, and some two and a half months after the will not support defendant's contention, policy was issued the property was but the other or second one does. It is as burned, the premium being still unpaid. follows: “This policy is made and accept

The question is whether the company ed upon the above express terms, and no was bound by the act of the agent in waiv- part of this contract can be waived except ing immediate payment of the premium, in writing signed by the secretary of the and giving plaintiff credit. The policy

The policy company. The words “policy” and “concontains a provision that“no insurance tract” are evidently here used as synonshall be considered as binding until actual ymous, and the latter clause

the latter clause clearly payment of the premium.” The same rules means that none of the terms of the policy apply to insurance companies as to any can be waived by any one except the secreother case of agency. They are bound by

They are bound by tary. Conceding that this would not preall the acts of their agents within the vent the company itself, through its board scope of the real or apparent authority of directors, or other body representing it with which they have clothed them, and in its corporate capacity, from waiving no further; and it would seem well settled any of the terms or conditions of the polby the great weight of authority that, at icy, yet it is a plain declaration that no repleast in the case of stock companies, a per- resentative of the company but the secre.

V.45N.w.no.141

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1888,

tary can do so, and hence that no local and a second mortgage therein referred to, agent can do it. This, being in the policy viz.: “Subject, nevertheless, to two cerItsell, was notice to plaintiff that this tain mortgages,-one first mortgage, giv. agent at Faribault had no authority to en to secure the payment of the sum of walve the condition that no insurance three thousand (3,000) dollars, which said would be binding until payment of the second party (defendant] assumes; and

) premium. It is no answer to say that he one certain second mortgage, upon which did not read the policy, and hence did not there is remaining unpaid the sum of two know what It contained. He was bound thousand five hundred dollars, ($2,500,) to know this; and, by acceptng the policy, which suid first party agrees to pay and be is estopped from setting up powers in satisfy on or before the 3d day of March, the agent in opposition to the express limItations contained in it. For this reason, The first coupon interest note, amountwe think the court erred in charging the ing to $221.94 was paid by the plaintiff as Jury that, if the policy was delivered by maker of the original note and mortgage, the agent to the plaintiff with the inten- after maturity; and he now brings this action of giving him a temporary credit for tion to recover of the defendant the the premium, this would be a delivery that amount so paid, on the ground that, by would bind the company so that the policy virtue of the stipulation in the deed above would be operative, and in force. Order quoted, the defendant became personally reversed.

and primarily liable to pay the debt se

cured by the mortgage. To this legal prop(43 Mina. 196)

osition we are unable to give our assent. BROWN v. STILLMAN.

In construing this clause, and in endeavor(Supreme Court of Minnesota. April 8, 1890.) ing to ascertain the intention of the parSALE OR MORTOAGED LAND- LIABILITIES OF VEN

ties, we must consider their relations to DEE.

the land conveyed, and to the original A. mortgaged a certain lot to B., and then mortgage thereon. As above stated, in conveyed the same to C., subject to the mortgage, the prior deeds referred to the land was without any assumption clause in the deed.c. conveyed simply “subject” to the mortthereupon convoyed to D., subject to the same and gage, without any assumption clause. a second mortgage, by warranty deed, and thereby The effect of the deed from the original also expressly agreed to pay and discharge the sec. grantor to Darrow, then, was to make ond mortgage, his grantee assuming the first mortgage. Held, that the land passed to D. the land the primary fund for the paycharged with the incumbrance of the mortgage ment of the mortgage, without any permade by A., as the primary fund for its payment, sonal liability on the part of the grantee, but thai, C. not being personally liable to pay the so that, in case the plaintiff was comsame, the covenants in the deed between hlm and pelled to pay the mortgage debt, he might his grantee must be construed as mutual covenants

be subrogated to the rights of the mortof indemnity, as respects the incumbrances upon the land, and did not make D. personally liable, gagee as respects the land. The land legally or equitably, to B., the first mortgagee, as

thereafter passed to the defendant's granprincipal debtor or otherwise.

tor charged in like manner with the same (Syllabus by the Court.)

liability, such grantor owing no other

debt or duty to the mortgagee or the Appeal from district court, Hennepin mortgagor, this plaintiff. He conveyed to county: REA, Judge.

the defendant by deed of warranty. The R. L. Stillman, for appellant. Woods & land was. it seems, subject to two mortKinginan and Edward C. Gale, for re- gages; and, if the grantor's liability upon spondent.

his covenants was to be qualified as re

spects either, it was necessary that there VANDERRIROH, J. The plaintiff, on the should be inserted in the deed a suitable 1st day of March, 1887, owned the certain stipulation expressing the agreement of town lot described in the complaint, and the parties as to which he should pay and on that day executed a mortgage thereon discharge the land from, and which he to secure u certain negotiable note, with should be indemnified against. These are Interest. A few days later the plaintiff the circumstances under which the consold and conveyed the mortgaged premises tract between these parties is to be conby warranty deed to une Darrow, subject strued, and the nature of the defendant's to the mortgage, and thereafter, in May, obligation ascertained. As to the second 1847, Darrow conveyed the same premises mortgage, it was clearly the intention by warranty deed to a corporation known that the grantor should remain personally as the " Barber Supply & Exchange Com- liable.---not merely by virtue of his covepany," also subject to the mortgage; and, nants in the deed, but that he should pay lastly, on the 3d day of September, the it off, and thereby discharge the land Barber Supply & Exchange Company sold therefrom within the time specified. But and conveyed the same land to the defend the first mortgage he was not to become ant in this action. The mortgage was to or remain responsible for by reason of his run three years, and the first installment covenants in the deed. As to that incumof interest became due March 3, 1888, being brance, the defendant took the land cum A negotiable coupon interest note. There onere, and charged with it, as the priwere no covenants by the grantees in the mary fund for its payment; and the clause, deeds to Darrow and the Barber Supply " which said second party [defendant] Company, respectively, to assume and pay hereby assumer," was merely intended the mortgage, but each took the land sub- to declare, as between the parties, that Ject thereto. But the deed to the defend the defendant assumed the incumbrance ant contained the following provision and quoad the land, so as to indemnify the stipulation in respect to that mortgage, I grantor against his covenants. Since the

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grantor was not personally obligated to of the materials. Instructed so to do by pay it, it could not be material to him the court, the jury returned a verdict for how the mortgage was paid, -whether by the plaintiffs, and from an order 'refusing foreclosure, or payment by the grantee a new trial Ulmer appeals. A few days personally, in case the latter should wish after the execution of the bond Maltby, to retain the title. It certainly would not in writing, authorized and requested the be a reasonable or equitable interpreta- | Fitzers to pay over to Gregg all moneys tion of this contract to hold that the par- due or to become due to him upon his conties intended, under such circumstances, tract; and the appellant insists that in reto make the grantee (defendant) the prin- fusing to allow this writing to be put in cipal debtor, and the land simply collat- evidence, as tending to sustain his conteneral security to such personal liability. tion that the materials in question were, The language must be construed with ref- | in fact, sold by plaintiffs to Gregg, and erence to the nature and purpose of the not to Maltby, the trial court erred. Conagreement entered into by the parties. ceding that the writing would have had

The assumption clause in this deed, un- the effect claimed for it, there is nothing der the circumstances of this case, does in the settled case which indicates that not fall within the rule in Follansbee v. plaintiffs were ever informed of the writJohnson, 28 Minn. 311,9 N. W. Rep. 882, and ing or the fact. It is true that Maltby tessimilar cases in this court. Here there is tified that when he first applied to plainnothing to warrant the inference that the tiffs for the lumber he said to them that contract was made for the benefit of the Gregg would handle the money. This was mortgagee or the plaintiff. He was not not disputed by the plaintiffs, but it falls put forward as the party to whom the far short of even an intimation that Maltconsideration was to be paid, or to re- by had irrevocably authorized and directceive a part of it reserved in the hands of ed all payments to be made to Gregg. It the grantee for his benefit; nor was there is evident that unless the plaintiffs hard any debt or obligation due from the gran- some knowledge of the writing, or of the tor which the grantee assumed to pay as

fact evidenced by it, the testimony was part of the consideration, and thus made wholly inadmissible for the purpose indihis own debt. Vrooman v. Turner, 69 N. Y. cated. In further support of the claim 284; King y. Whitely, 10 Paige, 465.

that the sale was to Gregg, appellant ofThe construction we have given to this fered to prove that soon after the plainclause in the deed in question, is, we be- tiffs' refusal to sell the lumber to Maltby, lieve, in accordance with the great weight without further inquiry, Gregg went to of authority, though the courts are not see them, and thereafter the naterial was agreed on the question. Thomas, Mortg. forthcoming, but the court declined to re$ 590, and cases; 1 Jones, Mortg. 88 755, 760. ceive the testimony. This ruling was corAny other rule would, in many cases, work rect, for, if anything at all could have been serious injustice. Order reversed. .

inferred from the circumstances which ap

pellant attempted to show, it might as (43 Minn. 161)

well be that, through Gregg's intercession BURNS et al. v. MALTBY et al.

and representations, the plaintiffs yielded (Supreme Court of Minnesota. April 16, 1890.)

.

and gave the credit to Maltby, as that

Gregg's visit confirmed their first impresMATERIAL-MEN-CONTRACTOR'S BOND-ACTION

sions, and, as a consequence, the sale must EVIDENCE

have actually been made to him. Had Several rulings of the trial court, whereby it excluded certain testimony from the jury, ex

the testimony been received, it would have amined and considered. Held, that none of said

had no significance or value whatever. rulings were erroneous.

The appellant alsu urges that the court (Syllabus by the Court.)

erred in declining to receive in evidence a

reply in an action brought by the plainAppeal from district court, Ramsey tiffs in this same court, against the Fitzer's county; WILKIN, Judge.

and others, for the value of the materials John D. O'Brien, for appellants. How- herein involved, and to have the said ard L. Smith, for respondents.

amount adjudged a lien upon the building,

and on the lots on which it was erected. COLLINS, J. Maltby, one of the defend. There are several reasons why the court ants, entered into a contract with W. A. was right in its views. The offer was as and C. W. Fitzer, to erect and complete to the complaint in the other action, and for them a certain building. As permitted not as to the reply. Although the counand authorized by the terms of the stat- sel now claims that it was his intention to ute then in force, (section 3, c. 90, Gen. St. offer the reply-in which he asserts there 1878,) Maltby, as principal, with one Gregg were some admissions which would prevent and the appellant, Ulmer, as sureties, en- the respondents from recovering herein-intered into a bond with the said Fitzers for stead of the complaint, and that no one the use of all who might do work or fur- was misled by his mistake, he must be nish material, conditioned that Maltby bound by the offer as made. It cannot be should pay all just claims for work done assumed that he committed an error in his or to be done, and for all materials fur- offer, that no one has been prejudiced by nished or to be furnished, pursuant to the it, and that his real purpose was well unsaid contract, and in the execution of the derstood. Again, if, as a fact, there were work therein provided for. The plaintiffs admissions in the pleading of the characare the material-men who furnished cer- ter specified, and which were material in tain lumber used in the construction of the action at bar, the record fails to disthe building. This action is upon the close it. The pleading itself was not probond to recover a balance due on account duced in the court below. It was not

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