was induced to purchase on the statements and representations of the vendor. Morgan v. Snapp, 7 Ind. 537; Bolton v. Branch, 22 Ark. 435; Adam's Equity, 179, 187." Grider v. Clopton, 27 Ark. 244. the result of such investigation without re- | equity will not allow him to say that he gard to the representations made by the adverse party, the rule is well-nigh universal that such representations do not give rise to a cause of action. The following brief excerpts will serve to indicate the views expressed by the courts: "When a party buys property, relying on his own judgment, he cannot avoid the contract on account of misrepresentations." Hess v. Young, 59 Ind. 379. "Where the purchaser undertakes to make investigations of his own, and the vendor does nothing to prevent his investigation from being as full as he chooses to make it, "We also think the evidence utterly fails the purchaser cannot afterward allege that to show that plaintiff believed these repthe vendor made misrepresentations." South-resentations, and relied on them in making ern Development Co. v. Silva, 125 U. S. 247, the purchase. It is true that in his ex8 Sup. Ct. 881, 31 L. Ed. 678. * * amination in chief he states generally that "No representation can amount to an ac- he relied on them; but his cross-examinationable deceit or fraud which is not relied tion conclusively shows that he did not on by the party claiming to be defrauded. If rely on them as true when he made his purhe has an opportunity to make an examina- chase. He made his purchase, not tion of the article purchased as to quality, because of any belief in their truthfulness, and does so, and acts on his own judgment, but because he thought Merriam would be there is no room for deceit." Moses v. Kat-liable as warrantor to make them good zenberger, 84 Ala. 95, 4 South. 237. "It is held that, even if fraudulent representations are made respecting a given subject, and the party to whom the representations are made does not rely upon such representations, but seeks from other quarters to verify the statements made, he cannot afterwards claim that a deceit has been practiced upon him by the party originally making the representations. Bigelow on Fraud, 87, and cases cited." Anderson v. McPike, 86 Mo. 293. "While it is true fraud vitiates all contracts, yet every false affirmation does not amount to a fraud. A knowledge of the falsity of the representation must rest with the party making it, and he must use some means to deceive or circumvent. Walker v. Hough, 59 Ill. 375. The fact that appellants made a personal examination of the logs before making the contract shows that they did not rely upon what was said by Wilcox; and the fact that Wilson insisted upon an examination repels the idea that he was trying to deceive." Fauntleroy v. Wilcox, 80 Ill. 477. if they proved untrue. On such a state of facts, as the court below well remarked, if plaintiff made out anything, it was a cause of action on a warranty and not for deceit." Humphrey v. Merriam, 32 Minn. 197, 20 N. W. 138. "Where one investigates fully for himself, he cannot claim reliance on the representations of another; but partial investigation and reliance in part will not bar an action for deceit." Freeman v. F. P. Harbraugh Co., 114 Minn. 283, 130 N. W. 1110, syllabus. To the same effect are the following: Cobb v. Wright, 43 Minn. 83, 44 N. W. 662; Farrar v. Churchill, 135 U. S. 609, 10 Sup. Ct. 771, 34 L. Ed. 246; Farnsworth v. Duffner, 142 U. S. 43, 12 Sup. Ct. 164, 35 L. Ed. 931; Slaughter v. Gerson, 13 Wall. (80 U. S.) 379, 20 L. Ed. 627; Wade v. Ringo, 122 Mo. 322, 25 S. W. 901; Tuck v. Downing, 76 Ill. 71; Brown v. Leach, 107 Mass. 364; Poland v. Brownell, 131 Mass. 138, 41 Am. Rep. 215; Attwood v. Small, 6 Clark & F. 232; Dady v. Condit, 163 Ill. 511, 45 N. E. 224; Crocker v. Manley, 164 Ill. 282, 45 N. E. 577, 56 Am. St. Rep. 196; Bell v. Byerson, 11 Iowa, 233, 77 Am. Dec. 142; Colton v. Stanford, 82 Cal. 351, 23 Pac. 16, 16 Am. St. Rep. 137; Far Port v. Williams, 6 Ind. 219; Pearce v. Carter, 3 Houst. (Del.) 385; Leavitt v. Fletcher, 60 N. H. 182; Weaver v. Skriver, 79 Md. 530, 30 Atl. 189. Many cases hold that, if the buyer can "Where it is shown, as in this case, that a person has ample opportunity of examining for himself, he cannot rest his rights up-rell v. Lovett, 68 Me. 326, 28 Am. Rep. 59; on the statements of others. It is his business to inquire into and ascertain what those rights are. 'A court of equity will not undertake, any more than a court of law. to relieve a party from the consequences of his own inattention and carelessness.' investigate and determine the facts for himSlaughter's Adm'r v. Gerson, 13 Wall. 379 self and has been afforded a proper oppor[20 L. Ed. 627]." Short v. Pierce, 11 Utah, tunity to do so, he is wanting in ordinary 29, 39 Pac. 474. prudence, if he rely upon the representations of the adverse party instead of making such investigation, and that he cannot maintain an action for deceit based upon representations as to matters which he ought to have determined for himself. "Where one has the opportunity to examine for himself and fails to do it, but purchases on the representations of another, if he be deceived, he must suffer from carelessness and want of care. So, in a case like the one at bar, where the means of information were not only accessible, but were availed of, and a personal examination made, This court, however, in consonance with the weight of authority has held that, if the buyer, instead of investigating as fully as he might, made only a partial investigation, and investigation and acted upon his own judgrelied in part upon such investigation and ment or that of his representative; and it in part upon the representations of the ad- necessarily follows that he is precluded from verse party, and was deceived by such rep- now asserting that he relied upon the repreresentations to his injury, he may maintain sentations of the defendant. an action for such deceit. Moline-Milburn Order affirmed. Co. v. Franklin, 37 Minn. 137, 33 N. W. 323; Marshall v. Gilman, 52 Minn. 88, 53 N. W. 811; Freeman v. F. P. Harbaugh Co., 114 Minn. 283, 130 N. W. 1110; Brown v. Andrews, 116 Minn. 150, 133 N. W. 568; Rodolphi v. Wright, 144 N. W. 430. But, if the buyer undertakes to investigate and determine the entire matter for himself, and is afforded a full and fair opportunity therefor, and in fact does make such investigation, and is permitted to make it as full and complete as he chooses, and he accepts the property after such investigation, the authorities are practically unanimous that he cannot be heard thereafter to assert that he relied upon the representations of the adverse party. Of course, if by trick or artifice he was prevented from discovering some material fact, or induced to omit some examination or inquiry which would have disclosed matters of which he was ignorant, such trick or artifice may constitute actionable fraud. OXMON v. MODERN WOODMEN OF (Supreme Court of Minnesota. Jan. 23, 1914.) (Syllabus by the Court.) INSURANCE (§ S14*)-FRATERNAL BENEFICIA BY ASSOCIATION-PROCESS. Section 3555, Gen. St. 1913, authorizing service of process upon a foreign beneficiary asance commissioner provides, "that no such servsociation by serving the same upon the insurice shall be valid or binding against any such association when it is required thereunder to file its answer, pleading or defense in less than thirty days after the date of such service." The summons in question required defendant to answer within 20 days from service thereof, and judgment by default was entered 22 days That such service after such service, held: and such judgment are not binding upon defendant and must be set aside. [Ed. Note.-For other cases, see Insurance, Cent. Dig. § 1995; Dec. Dig. § 814.*] Hallam, J., dissenting in part. Appeal from District Court, Ramsey County; Frederick M. Catlin, Judge. Action by Motel Oxmon against the Modern Woodmen of America. From adverse orders, defendant appeals. Reversed. Benjamin D. Smith, of Mankato, and Percy D. Godfrey, of St. Paul, for appellant. James Markham and Benjamin Calmenson, both of St. Paul, for respondent. In the case at bar, plaintiff undertook to investigate and determine for himself whether he would accept the engine. To secure him the absolute right to reject it and annul the contract, if he should so elect, the notes and mortgage were not delivered, but were to be held by the bank until he should make his decision. He sent Hanson to make the examination, and authorized him to accept the engine if found to be satisfactory and to reject it if not found to be satisfactory. He directed Hanson, if he accepted the engine, to take possession of it and ship TAYLOR, C. Defendant is a fraternal it to Ulen. Hanson went to Sykeston and beneficiary association incorporated under made the examination. The nature and ex- the laws of the state of Illinois. Plaintiff tent of his investigation does not appear; brought suit against it upon a policy of but, as he was at Sykeston for two weeks, insurance issued upon the life of her hushe certainly had sufficient time to make it band and payable to herself, and caused the reasonably complete. No claim is made that summons and complaint to be served upon it was not as full and complete as he desir- the insurance commissioner. The summons ed, nor that defendant interfered with or required defendant to answer within 20 days restricted his investigations in any manner. after such service. Twenty-two days thereNeither is it claimed that he had any knowl-after, no answer having been interposed, judgedge of the representations alleged to have ment was entered by default. The statute been made by defendant. As the result of his own personal investigation, he accepted the engine and shipped it to Ulen in accordance with his instructions. After it reached Ulen, plaintiff himself accepted it by a formal indorsement upon the duplicate contract held by the bank, made for the express purpose of informing the bank that he had satisfied himself as to the engine and that the time had arrived for the bank to deliver the notes and mortgage. governing the service of the summons in such cases provides, "that no such service shall be valid or binding against any such association when it is required thereunder to file its answer, pleading or defense in less than thirty days after the date of such service." Section 3555, G. S. 1913. Thirty-six days after the service of the summons, defendant appeared specially and moved for an order setting aside such service on the ground that the summons was illegal and void. This moThe admitted facts show that plaintiff un- tion was denied. Thereafter defendant again dertook to determine the entire matter for appeared specially and moved for an order himself, that he made his own independent | setting aside the summons and the service thereof, and determining that the same was not valid or binding upon defendant, for the reason that it required defendant to answer within less than 30 days after the date of such service. This motion was also denied. Thereafter by leave of court, defendant again appeared specially and moved for an order setting aside the summons and the service thereof and vacating the judgment entered thereon, and determining that said summons and said judgment was not valid or binding against defendant for the reason that defendant was required to answer within less than 30 days after the service of such summons. Upon this motion it was made to appear that the summons and complaint had been lost and that no answer was made within the 20 days for the reason that defendant's attorneys and officers did not know of the pendency of the suit, and that defendant was willing to appear, answer and try the case without delay if permitted to do so. This motion was also denied. Defendant appealed separately from each of the three orders. Defendant has not invoked the discretionary power of the court to grant it relief and the question presented is whether it is entitled to the relief sought as a matter of right. Plaintiff relies upon Lockway v. Modern Woodmen, 116 Minn. 115, 133 N. W. 398, Ann. Cas. 1913A, 555, to support her contention that the judgment is valid. In that case the summons required the defendant to answer within 20 days, and the trial court permitted the plaintiff therein to amend the summons by striking out 20 days and inserting in lieu thereof 30 days. This court with some hesitation affirmed the action of the trial court. The decision goes no further than to sanction the allowance of such an is binding upon defendant and the judgment HALLAM, J. (dissenting in part). I fully agree that the judgment should be vacated. The summons required the defendant to answer in 20 days instead of 30 days, as the statute provides, and the judgment was entered 22 days after the summons was served. Defendant was entitled to have the judgment set aside upon motion as a matter of right. 1 Freeman on Judgments, § 97; Remnant v. Hoffman, 11 Pac. 319.1 See Stocking v. Han son, 22 Minn. 542. The opinion goes further and in terms holds that the trial court should have granted the first motion to set aside the service of the summons "on the ground that the summons was illegal and void." In Lockway v. Modern Woodmen, 116 Minn. 115, 133 N. w. 398, Ann. Cas. 1913A, 555, an action against this same defendant, in which the same form of summons was served, the trial court denied a motion "to set aside the summons and the service thereof," held that the defect "could be cured by amendment," and on the hearing permitted the summons to be amendment upon proper application therefor, amended by inserting "thirty" days instead and cannot be extended. The court did not of "twenty," and allowed the action to prohold that a summons which failed to comply ceed. This amendment was necessary to with the requirements of the statute was save the cause of action from the bar of sufficient, or that a valid judgment could be the statute of limitations. On appeal the entered thereon; but merely that the court trial court was sustained. Yet the Lockway possessed the power, in a proper case, to permit the summons to be amended so as to Case is not here overruled. Taking the opinconform to the statute. The statute provides, ion in this case and the opinion in the Lock"that no such service shall be valid or bind-way Case together, it appears to me the court is committed to the proposition that a ing against any such association when it is required thereunder to file its answer, plead-summons, not merely irregular but void, is This is contrary to ing or defense in less than thirty days after subject to amendment. the date of such service." The statute from well-settled principles of law. If the deciwhich this excerpt is taken provides the only sion in the Lockway Case is permitted to method for acquiring jurisdiction of such as- | stand, this summons should not be held void. sociations and is constitutional. Spencer v. Court of Honor, 120 Minn. 422, 139 N. W. 815. To hold that the service of a summons 1 Reported in full in the Pacific Reporter; reported as a memorandum decision without opinion in 69 Cal. xv. STEVENS et al. v. WISCONSIN FARM LAND CO. et al. of their services. Defendants concede their right to compensation, but claim a special agreement by which it was agreed that (Supreme Court of Minnesota. Jan. 30, 1914.) plaintiff's should receive for their services a (Syllabus by the Court.) percentage of the proceeds of the Aberdeen Hotel when it should be resold. The jury 1. BROKERS (§ 85*)-ACTION FOR COMMISSION- found against this contention and returned EVIDENCE. a verdict in favor of the plaintiffs, fixing the In an action by an agent to recover the rea-value of their services at $8,000. sonable value of services rendered in effecting an exchange of property, evidence of the value of the property received by the principal is proper. [Ed. Note.-For other cases, see Brokers, Cent. Dig. §§ 106-115; Dec. Dig. § 85.*] [1] 1. At the trial defendants sought to prove the value of the Aberdeen Hotel property, as well as its size, character, and general condition. Objections to such evidence 2. BROKERS (§ 85*)-CUSTOMS AND USAGES ($ were sustained. The court ruled that the 3*)-ACTION FOR COMMISSION-EVIDENCE OF CUSTOMARY COMMISSION-CONCLUSIVENESS. Evidence of customary charges of brokers in similar cases is proper, but, in order that a customary charge may be decisive of the amount of recovery, a custom must be established so definite, uniform, and well understood that it may be assumed the parties contracted with reference to it, and in effect made it a part of their contract. [Ed. Note.-For other cases, see Brokers, Cent. Dig. §§ 106-115; Dec. Dig. § 85;* Customs and Usages, Cent. Dig. §§ 2, 6; Dec. Dig. $ 3.*] value of the property taken in exchange was not a factor to be considered in determining the value of plaintiffs' services, and on this theory submitted the case to the jury. The rulings of the court were erroneous. The question at issue was the reasonable value of the services of brokers in effecting an exchange of property. Any evidence which would throw light on the value of the services was admissible. The time spent, the money expended, the amount involved, the 3. PRINCIPAL AND AGENT (§ 184*)—TRIAL-DI- | results achieved, and customary charges for RECTION OF VERDICT. If an agent contracts in his own name without disclosing his principal, the other contracting party is entitled to hold either, but not both. If he sue both, however, the only remedy of defendants is by motion to compel him to elect. They cannot move a dismissal as to either. The option as to which shall be held rests with plaintiff, not with defendants. [Ed. Note. For other cases, see Principal and Agent, Cent. Dig. §§ 701-703; Dec. Dig. 8 184.*] 4. APPEAL AND ERROR (§§ 1140, 1178*)-DIS POSITION OF CAUSE-AMOUNT OF RECOVERY. Where error in the case bears only on the question of the amount of damages, a new trial may be granted upon that issue alone. Where defendants' testimony admits a certain amount, plaintiff may be given the option of accepting that amount in preference to taking a trial. new [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. $$ 4462-4476, 4604-4620: Dec. Dig. §§ 1140, 1178.*] similar services, were all proper elements to be considered. Mechem, Agency, § 606; Clark & Skiles, Agency, § 353; Forsyth v. Doolittle, 120 U. S. 73, 7 Sup. Ct. 408, 30 L. Ed. 586. In determining the value of the services of an agent we cannot wholly ignore the benefit of those services to the principal. This is perhaps the most important of the several elements of value. The authorities sustain this position. In Forsyth v. Doolittle, 120 U. S. 73, 7 Sup. Ct. 408, 30 L. Ed. 586, an action to recover the value of services rendered by an attorney at law in effecting a sale of lands and in various legal proceedings concerning the title thereto, it was held that evidence as to the character of the land sold and its possible value as a suburb of a city was proper. The most important part of the service was that rendered in negotiations, and it was said that "the Appeal from District Court, Ramsey Coun- compensation to be made in such cases is, ty; Frederick M. Catlin, Judge. Action by Edward Stevens and others against the Wisconsin Farm Land Company and others. Verdict for plaintiffs, and from an adverse order defendants appeal. Reversed, and new trial granted on the issue of damages only, unless plaintiffs shall elect to proceed in accordance with opinion. Briggs, Thygeson & Everall, of St. Paul, and Homer C. Clark, of Neillsville, Wis., for appellants. W. E. Barnacle, of St. Paul, for. respondents. HALLAM, J. Defendant Wisconsin Farm Land Company exchanged certain land in Wisconsin for the Aberdeen Hotel in St. Paul. Plaintiffs claim that they were employed by defendants Boynton & Holway to make this exchange, and that they procured it to be made. They sue for the reasonable value by the ordinary judgment of business men, Sel [2] 2. The theory on which the trial court tried the case was that, the reasonable value of plaintiffs' services is to be determined solely by a consideration of the amount usually and customarily paid to and received by other real estate brokers in the same locality for like services. Evidence of customary charges of brokers in similar cases is properly received. Ordinarily such evidence is simply an aid to the jury in arriving at the reasonable value of the services. Baker v. Barker, 118 Minn. 419, 137 N. W. was not for the defendants to say which one of them plaintiffs should pursue. The option was with plaintiffs. The court could not dismiss the cause as to either. There is no error on this branch of the case. See Dean v. Leonard, 9 Minn. 190 (Gil. 176); Marsh v. Webber, 13 Minn. 109 (Gil. 99); Hewitt v. Brown, 21 Minn. 163. [4] 4. The error in the case bears only upon the question of the amount of damages. The question of liability of defendants to pay a commission of some amount was fairly presented by the evidence and fairly submitted to the jury by the charge of the court. We see no reason for a new trial upon this issue. We accordingly grant a new trial of the issue of the amount of damages only. This practice is well recognized. Sauer v. Traeger, 56 Minn. 364, 57 N. W. 933; McKay v. N. E. Dredging Co., 92 Me. 454, 43 Atl. 29; Yaw v. Whitmore, 66 App. Div. 317, 72 N. Y. Supp. 765; Pickett v. Wilmington & W. R. Co., 117 N. C. 616, 23 S. E. 264, 30 L. R. A. 257, 53 Am. St. Rep. 611. 7; Ruckman v. Bergholz, 38 N. J. Law, 531; Hess v. Hayes, 146 Iowa, 620, 125 N. W. 671. It is true the existence of a custom may be decisive of the amount to be paid. If there exist a business custom, definite, uniform, well established, and understood by the parties, and if it is reasonable and lawful and not in contradiction of the express terms of the contract, it may be assumed that the parties contracted with reference to it, and in effect made it a part of their contract. Potts v. Aechternacht, 93 Pa. 138; Kock v. Emmerling, 22 How. (U. S.) 69, 16 L. Ed. 292; Hollis v. Weston, 156 Mass. 357, 31 N. E. 483; Walls v. Bailey, 49 N. Y. 464, 469, 10 Am. Rep. 407; Walker v. Barron, 6 Minn. 508 (Gil. 353); St. Anthony Falls Water Power Co. v. Eastman, 20 Minn. 277 (Gil. 249); Paine v. Smith, 33 Minn. 495, 24 N. W. 305; Clarke v. Lumber Co., 41 Minn. 105, 42 N. W. 785. The trouble is there is no evidence in this case of any definite or uniform custom establishing compensation of brokers upon exchange of properties. Plaintiffs' witnesses gave evidence of value, but it was not based on custom, but on the reasonableness of the charge. Their evidence was that commissions were paid ranging from 30 cents to $5 per acre. Some of them said the size of the tract and the value of the land makes some difference. Plaintiff Lightbody based his testimony as to value on the circumstances of this case, including the result accomplished. Some of defendants' witnesses fixed the value at a lump Others fixed it on a basis of varying sums per acre. Others fixed it on a basis of percentage of the actual value of the land. Most of them testified that the value of the property received in exchange affects LAUERMAN BROS. CO. v. KOMP (RIEHL, the amount of the agent's charge. Clearly no custom was established by the witnesses on either side which in any sense entered into the contract of the parties. sum. [3] 3. Defendants contend that the evidence does not sustain a verdict against both the land company and Boynton & Holway, on the ground that the land company was the principal in the transaction and Boynton & Holway only its agents. The evidence on behalf of plaintiffs is that they contracted with Boynton & Holway, knowing nothing of the interest of the land company. If an agent contracts in his own name without disclosing his principal, the other contracting party, on discovering the facts, may hold either agent or principal. He is not entitled to hold both. If he sue both, he may be compelled to elect between them. Gay v. Kelley, 109 Minn. 101, 123 N. W. 295, 26 L. R. A. (N. S.) 742. This right to compel an election is defendants' only remedy. There was no request made at any stage of this case that plaintiffs be required to elect. Defendants moved for a directed verdict in favor of the defendants Boynton & Holway. The court properly denied this motion. It Inasmuch as the testimony on behalf of defendants admits a value of plaintiffs' services of $5,000, we give the plaintiffs the option of accepting that amount, if they choose to do so, in preference to taking a new trial. New trial granted, on the question of damages only unless plaintiffs shall, within 20 days after remittitur, file with the clerk of the district court a written consent to a reduction of the verdict to $5,000. In such case the judgment may be entered for such amount, with interest. Garnishee). - (Supreme Court of Wisconsin. Feb. 3, 1914.) 1. CHATTEL MORTGAGES (§ 6*) RIGHTS OF CREDITORS-FAILURE TO FILE STATEMENT. An agreement by which a stock of merchandise is transferred upon deferred payments, with a provision that the business shall be continued and the stock kept up by new purchases, and that the vendor shall have the title to the entire stock, including the additions as security for the price, though called in the agreement a conditional sale, is in legal effect which provides that the mortgagor of a stock a "chattel mortgage," within St. 1913, § 2316b, of goods of which he is in possession, and from which he is permitted to make sales and apply the proceeds thereof upon the mortgage debt, shall file a statement of the aggregate amount of sales, the amount applied on the debt and the total valuation of the stock added every 60 days, and that, if he shall fail to file such statement, the mortgage after 15 days from the time fixed for the filing thereof shall cease to be a lien upon such stock in trade except as between the mortgagor and mortgagee, and, where no such statement was filed by the transferee, the transferror ceased to have a lien on the goods as against creditors. [Ed. Note.-For other cases, see Chattel Mortgages, Cent. Dig. §§ 23-41; Dec. Dig. § 6.* For other definitions, see Words and Phrases, vol. 2, pp. 1098-1106.] *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes |