Abraham Clark Freeman.

The American state reports: containing the cases of general value and ... online

. (page 57 of 121)
Online LibraryAbraham Clark FreemanThe American state reports: containing the cases of general value and ... → online text (page 57 of 121)
Font size
QR-code for this ebook


142 Mass. 1; Parkman y. Suffolk Say. Bank, 151 Mass. 218;
Booth y. Bristol County Say. Bank, 162 Mass. 456, 457.

Judgment on the finding.

GIFTS-SAVINGS BANK DEPOSIT-RETAINING PASS-BOOK.
Under what circumstances a deposit of money in a sayings bank by the
donor, he retaining the pass-book, will or will not be considered a gift
or a deposit in trust for the donee: See Martin y. Funk, 75 N. T. 184;
81 Am. Rep. 446, and extended note; Pope ▼. Burlington Say. Bank. 56
Yt. 284; 48 Am. Rep. 781, and extended note; Robinson y. Ring, 72 Me.
140; 89 Am. Rep. 808, and note, and also the extended notes to the
following cases: Crook v. First Nat. Bank, 85 Am. St. Rep. 26; Sheedy
t. Roach, 26 Am. Rep. 684, and Ray y. Simmons, S3 Am. Rep. 451*



Digitized by



GooqIc



OASES

or THX

SUPBEME COURT

Of

MINNESOTA.



Jordan v. Chicago, St. Paul, Minneapolis and
Omaha IIailway Company.

[58 MINNB80TA, 8.]

KAILROADS-YARD EMPLOYEES. DUTY OF TO LOOK AND
LISTEN.— The rule that one who attempts to cross or who places
himself upon a railroad track without looking and listening when,
by so doing, he might discover the danger from an approaching train,
Is guilty of negligence per se, is not to be applied to one who is em-
ployed in a railroad yard, and whose duties frequently make it neces-
«ary for him to go upon the tracks. His failure to look and listen
may be negligence or not according to the circumstances, of which the
Jury are to Judge.

RAILROADS— LICENSE TO USB TRACK.— A custom among
the employees in the yard of one railroad company to go upon the
track of another company in the same yard when performing their
duties creates a license from the latter company to thus use its
tracks.

Action to recover for personal injury caused by negligence.
John Jordan was a yard switchman employed by, and in mak-
ing up trains in the yard of, the Wisconsin Central Railroad
Company. The defendant company had a parallel track in the
«ame yard, the tracks being about eight feet apart. Jordan
stepped upon the track of the defendant company to give signals
in making up a train and was struck from behind by the tender
of one of defendant's engines backing along the parallel track
«t unusual speed without ringing a bell or other warning. The
injury thus received resulted in his death, and his administrator
brought this action. The action was dismissed after plaintiflf's
evidence had been put in, on the ground that he had failed to
«how actionable negligence against defendant, and that the Ae-

.436)



Digitized by



GooqIc



June, 1894.] Jordan v. Chicago etc. Ry. Ca 487

ceased had been guilty of contributory negligence. A new trial
w&a granted^ on the ground that the question of negligence
should have been submitted to the jury. From the order grant-
ing a new trial the defendant appealed.

S. L. Perrin^ for the appellant.

Steyens, O'Brien, Cole & Albrecht, for the respondent.

® QILFILLAN, C. J. The evidence in the case was such as
to make the question of the defendant's negligence one for the
jury.

The question of the evidence as to contributory negligence on
the part of deceased is not so easily determined, but the ma-
jority of the court are of opinion that, upon the evidence,
that question was also one for the jury.

It is well settled that, ordinarily, one who attempts to cross or
who ])]aces himself upon a railway track without looking and
listening, when, by so doing, he may discover the danger from an
approaching train, is guilty of negligence. The rule has been
most frequently applied to the case of persons traveling on a
highway at a railroad crossing. The majority of the court are
of opinion, in which I do not concur, that this rule is not to be
applied to the case of one who is employed in a railroad yard, and
whose duties frequently make *• it necessary for him to go upon
the tracks, and the exigencies of whose duties may call upon him
to do so without premeditation or time or opportunity to ascer-
tain if it is dangerous to do so; that the act of such a person in
placing himself upon the track, in the discharge of his duty,
without looking or listening, is not per se negligence, but may
be negligence or not, according to other circumstances in the
case, of which the jury are to judge.

The majority of the court are also of opinion that from the evi-
dence the jury might find a license by defendant, to the yard
employees of the company for which deceased worked, to go upon
its (defendant's) track in the yard, when necessary in the dis-
charge of their duties; i. e. when necessary to signal an engine
that cars were coupled, and ready to be moved.

Order afiSrmed.

Buck, J., did not sii

RAILROADS-EMPLOYEE ON TRACK-DUTY TO LOOK AND
LISTEN.— The case o! McMarshail v. Chicago etc. Ry. Co., 80 Iowa»
757, 20 Am. St. Rt'p. 445, will be found to be almost identical with the
princinal case. There it was hel<l that where, in an action to recover
for injuries to an employee of one railroad company from being struck



Digitized by



GooqIc



488 Downs v. Finnegam, [Mimk



by th« engine of another, it b shown that the tracks of the two i
panies were very cloEe to each other; that snch employee and the other
employees of hia cowpany were accustomed to rtep upon the track of
the delendant company to make signals which were necessary to the
protection of both companies; that the custom was acquiesced in and
not objected to by the defendant company; and that such employee
had stepped upon its track for the purpose of signaling at the time of
the accident— he was not a trespasser so as to preclude him from recov-
erinffy nor did the rule that a person on the track is required to "look
and listen" apply in such a case.



Downs v. Finnbgan.

[58 MINNESOTA, 113.]

ASSUMPSIT.— A MBRB NAKED TRBSPASS, although ereattng

a liability for damajsres cannot be the basis of an implied assumpsii.
Assumpsit does not lie to recover damages for the tort, but to recoyer
the value of that which the wrongdoer has appropriated to his own
Qse, the law Implying a promise to pay Its reasonable value.

ASSUMPSIT-WAIVER OP TORT TO SUB IN.— The right to
waive a tort and sue on an implied assumpsit extends to cases where
there has been a wrongful conversion of the property of one person
to the use of another, whether sold by the latter or not. and also to
cases where a trespasser has severed trees from land In possession
of the owner, or has quarried stone thereon, and has afterward taken
the trees or stone, converting such property to his own use, so that
trover or replevin might be maintained.

ASSUMPSIT AGAINST TRESPASSER— AD YBRSB POSSES-
SION.— If the occupancy of a trespasser, who severs trees or stone
from the land of another and converts the property taken to his own
use. Is such as to create an adverse possession, assumpsit does not lie
for the value of such property.

ASSUMPSIT— WAIVER OF TORT TO SUE IN— COUNTER-
CLAIM.- If a party may sue in tort or In assumpsit, and he elects to
waive the tort and sue in assumpsit, his demand may be counter-
claimed against a plalntiflTs cause of action arising on another con*
tract, or, if Itself set up by a plaintiff as arising on contract, it may
be opposed by a counterclaim arising out of another contract

PLEADING— VARIANCE.— If a pleading avers that a party re-
moved certain personal property from the land of another under a
license, while the proof shows that he was a mere trespasser, there la
a material variance between the pleading and proof.

PLEADING-VARIANCE-WAIVER.-A variance between the
pleading and proof Is waived by a failure to object to the evidence on
that ground.

S. Ladd, for the appellant

Savage & Purdy, for the respondent

**• COLLINS, J. The complaint herein was in assnmpsit to
recover the value of materials furnished and labor and services
rendered and performed by plaintifT for defendant. The answer,
after putting in issue the value of the materials, labor, and



Digitized by



GooqIc



June, 1894.] Downs v. Fimmeoan. 489

•ervices^ set forth, by way of counterclaim^ that defendant waa
the owner of certain described real property; that, between
specified dates, plaintiff bought and received from him, and ex-
cavated, quarried, and removed from said premises, a specified
quantity of stone, of an alleged value largely in excess of the
amount demanded in the complaint. The reply put in issue the
averments as to the counterclaim^ and thus denied among other
things that defendant was the owner of the real estate described
in his answer. At the close of defendants proofs in respect to
his counterclaim, the jury were instructed to disregard it, and to
return a verdict for plaintiff as demanded in the complaint,
which was done. The cause comes before us on a bill of excep-
tions^ an appeal having been taken from an order granting de-
fendant's motion for a new trial.

It appeared from the testimony produced in support of the
counterclaim that defendant had the paper title to the land de-
scribed in his answer; that plaintiff had entered upon it, quarried
and removed a large quantity of stone^ selling a part and using
the balance ^^'^ himself. The defendant made no effort to
show an express contract under which plaintiff went upon the
land, or quarried or removed the stone. He sought to maintain
his counterclaim by waiving the tort, and by relying upon an im-
plied contract, and no objection to this seems to have been made
until defendant rested. But we do not think that from the evi-
dence it clearly appeared, before defendant rested his case, that
he intended to rely wholly upon a tort and his waiver of it. This
being so, plaintiff's counsel did not lose or waive their right to
object when defendant rested; and in this respect the case dif-
fered from Brady v. Brennan, 25 Minn. 210, and Warner v.
Foote, 40 Minn. 176.

It is defendant's position that assumpsit will lie for the value
of property severed by another person from his realty, and then
taken away from the freehold by the latter; that the owner of
property thus tortiously converted may waive the tort, and
elect to sue upon an implied agreement on the part of the wrong-
doer to pay what the property is reasonably worth. The action
then becomes as upon contract, and is brought within the terms
of the statute concerning counterclaims. But, conceding this
to be true in a general sense, it does not follow that such a rule
is applicable in all cases. The defendant here, when pleading
his counterclaim, had alleged ownership of the land on which
the trespass was said to have been committed, and this allega-
tion of ownership had been controverted and put in issue by the



Digitized by



GooqIc



490 Downs v. Finnegan. [Minn.

reply. Under the allegations of the reply, the plaintiff could
•how that he, and not defendant, owned the land, so that the
case was essentially different from one in which there was no
question as to which was the owner of the real property involved.
The settled principle is that title to land cannot be tried ex
directo in transitory actions. Washburn v. Cutter, 17 Minn.
361, which was an action in replevin to recover logs which had
been severed from the freehold and taken away, is an authority
upon this point: See, also, Nash v. Sullivan, 32 Minn. 189. So
that, in order to maintain assumpsit for the value of the stone
excavated from the soil and converted by plaintiff, the defendant
must have had the actual or constructive possession of the land,
in addition to his paper title. If the series of acts in which the
excavating and severing of the stone from the soil, the taking
away from the freehold, and the conversion have occurred, ^^®
were sufficient to create an adverse possession in plaintiff,
assumpsit for their -value could not be maintained, for that would
directly involve the trial of title to the land, and hence the coun-
terclaim could not stand. Conceding, therefore, that if defend-
ant was in actual or constructive possession of the land, he could
waive the tort and recover on his counterclaim upon the implied
promise, the inquiry is as to what was disclosed upon the trial in
respect to plaintiff's possession. It was simply shown that for
five or six years, commencing in 1886, plaintiff had worked the
quarry and taken out stone. Notliing further than this was
shown. The character of the land, or to what extent it was
occupied by plaintiff when taking out the stone, or for what part
of each year, or what visible signs there were of his occupancy,
was not made to appear. Giving this evidence its full effect,
it is apparent that it was not such as to require a verdict that
plaintiff was in adverse possession as against defendant. It fol-
lows that the court below ruled correctly when granting defend-
ant's motion for a new trial, if his position as to the availability
of the counterclaim is sustainable.

There seems to be no difference of opinion upon the proposi-
tion that a mere naked trespass, although creating a liability for
damages, cannot be the basis of an implied assumpsit. Its basis
18 the benefit which the wrongdoer has received. Therefore, the
action of assumpsit is not to recover damages for the tort, but to
recover the value of that which the wrongdoer has appropriated
to his own use, the law implying a promise to pay its reasonable
value. And formerly it was universally held — and is still held in
many jurisdictions — that the right to waive a tort and to sue on



Digitized by



Google



Jane, 1894.] Downs v. Finnxoan. 491

an implied assumpsit must be limited to cases where goods and
chattels have been wrongfully taken and sold by the wrongdoer.
The owner might then disaffirm the act^ and^ treating him as a
wrongdoer^ sue in trespass^ or he might affirm the act^ and^ treat-
ing the wrongdoer as an agents claim the benefit of the transac-
tion. When we go beyond this proposition, there is a square
conflict of opinion, as is stated in an article from the pen of
Judge Cooley: 3 Alb. L. J. 141. But certain it is that the rule
has been extended to cases where there has been a wrongful con-
version of property of one person to the use of another, whether
sold or not by the latter, and also to cases where a trespasser has
severed trees from land in possession *^® of the owner, or has
quarried stone thereon, and has afterward taken the trees or
stone away, converting the same to his own use, so that trover or
replevin might be maintained. That the doctrine has been
greatly developed and extended in application is apparent, and
that in cases where property has been severed from real estate
by a wrongdoer, carried from the freehold, and converted to his
owa use, the rightful owner may sue and recover its value as on
implied contract, is thoroughly established, although it may not
be in haimony with the principles of the reformed system of
pleading. No reason exists why, if permissible at all, it should
not include cases arising out of trespass, to the extent that the
property severed and carried away is beneficial to the trespasser,
except where it would involve a trial of title to real estate.

It being established that an injured party may elect between
the two forms of remedial proceedings — may sue in tort for the
wrong done him, or in assumpsit as upon an implied contract —
it follows that by waiving the tort the demand may be counter-
claimed against a plaintiff's cause of action arising on another
contract, or, where itself set up by a plaintiflF as arising on con-
tract, it may be opposed by a counterclaim arising out of another
contract: Pomeroy's Remedies and Remedial Rights, sec. 801;
22 Am. & Eng. Ency. of Law, 389, and cases cited in notes.

As has been stated, the answer averred that plaintiff had been
licensed to quarry and remove the stone, while from the proof it
is apparent that he was simply a trespasser. In view of future
proceedings, it is incumbent upon us to say that there was a
material variance in proving a trespass instead of a license, but
this variance was waived by plaintiff's failure to object to the
evidence on that ground. The right to waive the tort and to
recover as on implied assumpsit is an exception to the principles



Digitized by



GooqIc



492 Hall v. Maudlin. [Mum.

of code pleadings and there miut be no extension beyond vhat ii
allowed at common law. On this point the case ig brought
directly within the mle governing in Hurley ▼. Lamoreanz, 29
Minn. 138.
Order affirmed.

Buck, abeent, took no part

ASSUMPSIT— WAIVER OF TOET TO SUE IN.— The owner of
personalty wrongfully converted into money or its equivalent may
waive the tort and sue in aasum^t ; but otherwise the action of as-
sampsit cannot be maintained: Kidney v. Persons, 41 Vt. 886; 96 Am.
Dec. 595, and note; Gilmore v. Wilbur, 12 Pick. 120; 22 Am. Dec. 410;
O'Conley v. Natchez, 1 Smedes AM. 31; 40 Am. Dec. 87, and note.
To the same effect see Tuttle v. Campbell, 74 Mich. 652; 16 Am. St
Rep. 652. See, also, the extended note to Webster v. Drinkwater, 17
Am. Dec. 242.



Hall v. Maudlin.

[58 MINHBOTA* 137.]

USURY— LOAN BY AGENT.— If a money lender intmscts the en-
tire management of his business to a general agent, with unlimited
authority to conduct it according to his own discretion, and with the
understanding that he is to obtain compensation for his services and
expenses as agent by way of commissions or bonuses from borrowers,
and the agent exacts usury in making a loan by retaining a commis-
sion which, together with the interest reserved, amounts to more
than the rate allowed by law, the case stands precisely as if it had
been done by the principal personally, and he cannot shield himself
behind the pretext that he gave the agent no authority to exact more
than legal interest, and that he had no actual knowledge that he was
BO doing.

A. D. Polk^ for the appellants.

C. 0. Layboume^ for tlie respondent

^^ MITCHELL, J. The defense to this action was that the
note sued on was usuriouB, and the only question on this appeal is
whether the finding to the effect that it was not is justified by the
evidence.

There is practically no conflict in the evidence. The note,
which was for two hundred and fifty doUars, payable in sixty
days, with eight per cent interest, **• was given for a loan of
money. The loan was obtained from plaintiff's agent» Evarts, in
Minneapolis. Plaintiff lived in Chicago, and some two yean
previously had placed quite a large sum of money in the hands of
Evarts for investment by loan. He appointed Evarts his general
agent, with absolute and unlimited authority to transact all



Digitized by



GooqIc



Julji 1894.] Hall v. Maudlin. 498

kinds of budnefli, according to his best judgment, as fully as lie
himself could haye done if personally present. He took no part
in the business himself, but left eve^hing to the sole discretion
of Evarts, who never consulted him, but loaned money when, to
whom, and upon such terms as he saw fit, and, when it was
repaid, loaned it again as he pleased. Evarts' general mode of
doing business was to charge the borrowers, in addition to the in-
terest provided for in the note, a bonus or commission, varying
from five to ten per cent on the amount of the loan. The
amount of this bonus or commission was not fixed with reference
to any services performed, or claimed to have been perf ormed^ for
the borrower, in the particular transaction, but with reference
to Evarts' general expenses in running his business, such as office
rent, clerk hire, and the like, so that these bonuses or commis-
sions might pay all his expenses, and leave him ''a fair amount of
profit in his business." There is no evidence that plaintiff gave
Evarts any express authority to charge more than the legal rate
of interest, and no direct evidence that he knew that he was doing
so; but it does appear that he paid Evarts nothing for his services,
and that the understanding between them was that he 'Vould
get his commissions out of the charges; that whatever he realized
from the business would be from commissions that people would
pay him for getting the money for them." Translated into
plain English, this meant that Evarts was to get his compensa-
tion from the borrowers^ and was left to realize what he could out
of the business in that way.

When the loan was made to the defendants, Evarts, in ac-
cordance with his usual custom, retained, out of the amount
loaned, twenty-five dollars, giving the defendants only two hun-
dred and twenty-five dollars. It is idle to claim, from the evi-
dence, that Evarts was, in this transaction, a loan broker, or in
any sense the agent of defendants. He was acting solely as the
agent of plaintiff, and performed no services beyond what any
lender would do in his own behalf. He did nothing that could
have formed any sort of basis for any charges against a borrower,
UT)Iees it was the *^ trifling matter of drawing up the note for
defendants to execute. It is not even pretended that the amount
of twenty-five dollars was fixed with reference to any services per-
formed for defendants, but, in accordance with the general prac-
tice above explained, with reference to Evarts* expenses in and
co'npensation for conducting the business.

If the business had been conducted by plaintiff personally, no
one would question the usurious character of the transaction.



Digitized by



GooqIc



494 Hall v. Maudlik. [Kum.

Ko 0110 waald claim that, where a inan is leDding Ilk
he can charge to the borrower, in addition to the maxmnim Iq^
rate of interest, all the expenses of transacting his own biuinea^
including compensation for his own services in attending to it

But, if he can cast all this burden upon the bonowen by
merely turning over the business to a general agent, there would
be yery littie left of the statute against usury.

The ^^aw of usury by an agenf' is not in a very eatisbctoTj
condition. It would, perhaps, have been more in hsimony with
the principles of the law of agency, and have more effectu-
ally prevented evasions of the usury laws, had the coxo^b, at the
etart, adopted the views of Comstock, J., in his disBcnting opin-
ion in Condit v. Baldwin, 21 K Y. 219, 78 Am. Dec. 137, and
held that where an agent exacts more than the legal rate of in-
terest the contract is an entirety, and if the principal adopts it
he must adopt it as a whole, with all its vices; that if the agent
has exceeded his authority, the principal is not bound by it, but
may repudiate the whole, and recover back his money, bat that
the principal must either disavow the dealing or take all the
consequences.

In Acheson v. Chase, 28 Minn. 211 — ^followed in some later
cases — ^this court adopted in part the doctrine of the opinion of
the court in Condit v. Baldwin, 21 K Y. 219, 78 Am. Dec 137,
and, in so far as we have, it must be adhered to, as having become,
in effect, a law of property. But we do not propose to extend
the application of the doctrine beyond what has beeo already
decided. As was said in Lewis y. Willoughby, 43 Minn. 307, in
order to protect honest and innocent lenders from suffering for
the secret, unauthorized exactions of their agents, we have
gone as far as we can go without opening the door through
which anyone can evade the law merely by transacting his busi-
ness through an agent.

Upon the facts, the present case ia more than covered by the
decisions ^^^ of this court, notably by Avery y. Creigh, 35 Minn.
456.

Where, as in this case, the lender intrusts the entire maDag^
ment of his business to a general agent, with unlimited anthoritj
to conduct it according to his own discretion, and with the
understanding that he is to obtain compensation for his sernces
and expenses as agent by way of commissions or bonuses from the
borrowers, he cannot be permitted to shield himself behind the
pretext that he gave the agent no authority to exact anything



Digitized by



GooqIc



Jiil7f 1884.] Ibwin v. McEechnis. 495

in ezceBB of the legal rate of interest^ and that lie bad no actual
knowledge that he was so doing.

Where the lender thus places his business under the exclusive
and unlimited control of a general agent, if the agent exacts
usury the case stands precisely as if it had been done by the
principal personally; and such an agent has no right to exact
from the borrower, either for alleged services or otherwise, any-
thing which the principal might not have lawfully exacted had
he transacted the business in person. Nor, upon the facts, is it
true, except in name, that the plaintiff received no part of this



Online LibraryAbraham Clark FreemanThe American state reports: containing the cases of general value and ... → online text (page 57 of 121)