the daytime. She started to find the toilet | procured from plaintiff by the defendant's room in the darkness, groping along the wall where she supposed it to be, and entered through a door that was partly open, but which led, not to the toilet room, but to the basement. She fell 12 feet upon a cement floor and sustained the injuries for which the action was brought. The only question on this appeal is whether it conclusively appeared that plaintiff was guilty of contributory negligence. She knew there was a toilet room near where she was looking for it. It was pitch dark. She could see neither the sign on the door she wanted, nor anything to distinguish it from the cellar door. These facts distinguish this case from the case of Speck v. Northern Pacific Ry. Co., 108 Minn. 435, 122 N. W. 497, 24 L. R. A. (N. S.) 249, 17 Ann. Cas. 460. In that case it was daylight, and the plaintiff, had she looked, could have seen that she was not entering the door of the waiting room, which was plainly marked, and could have seen that the door she opened led to the basement. As said in the Speck Case, it is impossible to formulate a universal rule. Each case, in a measure, must be determined by itself, in view of its own particular circumstances. The inquiry is, of course, whether plaintiff acted as a woman of ordinary prudence would have acted under similar circumstances. There is force in the argument that plaintiff had no right to take it for granted that there was no other door leading from the waiting room, and that, in view of the darkness, it was not due care to step through a doorway without some investigation to discover where it led to. But, on the other hand, it does not seem to us that reasonable minds could not well reach dif ferent conclusions as to whether she was in the exercise of ordinary care. Plaintiff had some right to presume that the premises were in a reasonably safe condition, and that no unguarded trap existed in the room. We cannot say as a matter of law that she was careless, either in groping in the dark for the door she wanted, or in supposing that she had found it. The question was one for the jury to determine. The case of Steger v. Immen, 157 Mich. 494, 122 N. W. 104, 24 L. R. A. (N. S.) 246, is different in its facts, and not in point. Judgment affirmed. RASE v. MINNEAPOLIS, ST. P. & S. S. M. RY. CO. (Supreme Court of Minnesota. July 12, 1912.) (Syllabus by the Court.) 1. RELEASE ($ 24*)-SETTING ASIDE-CONDITIONS PRECEDENT. Where, in a suit brought to set aside a stipulation dismissing on the merits an action brought to recover damages for personal injuries through the defendant's alleged negligence, the court finds that said stipulation was fraud and deceit, and that plaintiff was overreached and by misrepresentation induced to dismissal of said personal injury action, the accept an inadequate sum in settlement and stipulation was properly set aside, but held that the findings and evidence showing that plaintiff, as a result of the deception and before knowledge thereof, had spent a large part of the amount received in the settlement, it was error for the court to require plaintiff to restore more than he had the ability to do before the trial of the personal injury action. [Ed. Note.-For other cases, see Release, Cent. Dig. § 57; Dec. Dig. § 24.*] 2. RELEASE (§ 24*)-SETTING ASIDE-CONDITIONS PRECEDENT. Under the findings and evidence in this case, held, that substantial justice may be done by requiring plaintiff to restore to the defendtion such an amount only of that received ant before the trial of the personal injury acupon the settlement as he is able, and providing that the balance thereof be applied in reduction of the verdict or judgment which may be rendered in such action.. [Ed. Note.-For other cases, see Release, Cent. Dig. § 57; Dec. Dig. § 24.*] 3. APPEAL AND ERROR (§ 870*)-REVIEWSCOPE AND EXTENT-INTERLOCUTORY DECISIONS. and before the entry of judgment, can be reA nonappealable order, made after trial viewed only upon an appeal from the judgment, where no motion for a new trial has been made; hence, so long as the judgment may be questioned on appeal, the correctness of such order may also be attacked. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. 88 3451, 3487-3512; Dec. Dig. § 870.*] Appeal from District Court, Ramsey County; Olin B. Lewis, Judge. Action by Tom Rase against the Minneap olis, St. Paul & Sault Ste. Marie Railway Company. From a judgment dismissing the action on its merits, plaintiff appeals. Reversed and remanded. W. E. Dampier, J. W. Pinch, and L. J. Dobner, all of St. Paul, and J. A. Peterson and Larrabee & Davies, all of Minneapolis, for appellant. A. H. Bright, of Minneapolis, M. D. Munn, of St. Paul, and John L. Erdall, of Minneapolis, for respondent. HOLT, J. This is an appeal by plaintiff from a judgment dismissing the action on its merits for noncompliance with the conditions upon which plaintiff was to have the relief asked for in his complaint. A former appeal in the case is reported in 116 Minn. 414, 133 N. W. 986. It appears that plaintiff, on March 19, 1907, was severely injured through the alleged negligence of defendant and brought an action to recover the damages sustained. At the trial thereof a verdict was directed for defendant, but on appeal a new trial was awarded. Rase v. Minneapolis, St. Paul & Sault Ste. Marie Ry. Co., 107 Minn. 260, 120 N. W. 360, 21 L. R. A. (N. S.) 138. Before a new trial could be had, and on March 23, 1909, the defendant, behind the back of For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes plaintiff's attorneys, obtained from him a stipulation dismissing the action on the merits for $2,000 and transportation for himself to Norway. On November 1, 1909, he claims he discovered that fraud and deception had been practiced on him in the settlement, and in January, 1910, he brought the present action, alleging the fraud, and asking that the stipulation mentioned be set aside, and he be permitted to try the action the same as if the stipulation had never been made. The was representing to defendant that plaintiff over plaintiff in the settlement of his said cause." Upon the trial the court found that plaintiff was a laborer, with imperfect knowledge of the English language, having come to this country from Norway in 1901; that while in defendant's employ, through its alleged negligence, he received permanent injuries which resulted in the total loss of sight in one eye, total loss of hearing in one ear, partial paralysis in the right half of the face and tongue, atrophy of his right deltoids, escape of some of the brain tissue through an opening in the right ear, and other injuries. The court also found that on March 18, 1909, 15 days after the new trial was granted by this court in the personal injury action, one Sandager, familiar with the Norwegian language, a detective in the employed an unfair and unconscionable advantage of the Omaha Railway Company, while pretending to be working for plaintiff's attorney, one Dampier, ingratiated himself with The conclusions of law were: "That upon plaintiff, took advantage of the latter's weak- payment by plaintiff to defendant within 60 ness and ignorance, and induced him to take days from the date hereof of said sum of up his residence at Sandager's home, and $2,000 and interest, together with an amount willfully represented to plaintiff that his equal to the value of the transportation fursaid attorney was crooked and intended to nished plaintiff by defendant from St. Paul settle the case for $1,000 and cheat plaintiff to Norway, plaintiff is entitled to a decree" out of all. Sandager plied plaintiff with setting aside the dismissal of the former acliquor continuously, and on the 22d of March tion and allowing it to proceed to trial. Aftobtained a contract from him employing er the decision was filed, a motion was made Sandager to settle with defendant, for which by plaintiff to amend the findings of fact Sandager was to be paid one-third of the and conclusions of law to the effect that amount received, but not less than $500. plaintiff had incurred a large expense in goThe court also finds that during this time ing to Norway, remaining there some time, Sandager was paid by the said Omaha Rail- and in returning, induced to do so through way Company for work as a detective under defendant's fraud, and that plaintiff had one Greene, who was also in the secret serv- spent all or nearly all of the sum received, ice of said company, both engaged in dis- and had no money or means with which to covering fraud in spurious personal injury repay defendant, and that plaintiff should actions pending against railway companies have the relief granted without returning in the state, and had been particularly em- any part of the consideration, but that, if ployed in investigating personal injury cases a verdict is had upon the trial of the action, handled by said Dampier; but Sandager, un- $1,500 received by plaintiff be applied on der direction of Greene, pretended to plain- the verdict. This motion was denied, as was tiff that he was working for Dampier. also a subsequent motion to open the case Through the efforts of Greene and Sandager, and permit plaintiff to introduce further acting with the knowledge and at the re- proof of his inability to comply with the quest of defendant, a meeting was arranged condition. Upon the former appeal herein with defendant's claim agent on March 18, (116 Minn. 414, 133 N. W. 986) the order on 1909, for the purpose of settling the claim the first motion was held not appealable, without the knowledge of plaintiff's attor- and the order on the second was affirmed, ney, and daily meetings were had till March as being discretionary, even if not appeala23d for that purpose. During these meetings defendant's claim agent and Sandager willfully represented to plaintiff that his said attorney was a cheat and a crook, and ble. [1, 2] This appeal from the judgment presents the question whether or not it was proper, upon the evidence and the findings, to require plaintiff to pay back what he re- | tion precedent to the trial of his personal ceived before he is entitled to try the orig- injury action. In imposing conditions on inal case. We reach the conclusion that the plaintiff, the possible outcome of the personcondition imposed by the learned trial court al injury action, and how it might affect depractically denies plaintiff relief from a de- fendant, should be borne in mind. If plainliberately planned fraud upon him; for tiff has a legal claim against defendant, and there is no finding that plaintiff has now the it be true, as the court found, that the money, or any means, so that he can com- amount settled for is grossly inadequate, ply. On the contrary, the inference is al- then it would follow that nothing ought, in most conclusive that a large part of the justice, be returned before trial, because money is gone, so that some one else must plaintiff should then recover more than he furnish the means if plaintiff is to have his has received. On the other hand, if there is case tried under the decision herein. Courts no valid claim, but defendant was merely do not look with favor on attorneys assisting buying peace, or doing an act of humanity their clients in this manner, even if the abil- for one injured in its service, or the trial ity existed, and where else may plaintiff court is mistaken in the finding that the look for aid? Plaintiff, an ordinary laborer, settlement was inadequate, then, of course, could not have accumulated very much in in such a contingency the expense of the the six years he was here preceding the ac- trial will fall on defendant unjustly. But it cident, and from the injuries received it is appears to us that this expense to the one certain he has been able to earn little, if any found guilty of deception is not of sufficient at all, since. The ticket to Norway is gone. consequence to warrant a court of equity in So are the necessary expenses on the trip denying the defrauded one his day in court. there and return. He gave part of the mon- Of course, it is entirely right and proper to ey to his mother in Norway, and fixed up require a return to defendant of so much as the house for her. Greene admits Sandager plaintiff is able to return, so as to protect paid him $25, and says plaintiff paid San- the defendant against the contingency mendager, and the inference is irresistible that | tioned. But to require more in this case the latter obtained the $500 he bargained for. The court also determined that he should pay interest. This, in itself, is quite a sum for a permanently injured and crippled laborer to raise. We fully recognize and adhere to the wholesome rule that, where one comes into court and asks its aid to undo a fraudulent deal, he should do equity and restore what he obtained from the party who defrauded him. But it is also well settled that where there is inabil-termined in the suit fraudulently settled. ity to restore, and the matter settled by the fraudulent transaction is an unliquidated claim, the court has the power to let such claim be litigated and determined, and do justice and equity by applying what was received in the settlement upon the verdict or judgment ultimately obtained. Merrill v. Pike, 94 Minn. 186, 102 N. W. 393; Marple v. M. & St. L. Ry. Co., 115 Minn. 262, 132 N. W. 333; Thackrah v. Haas, 119 U. S. 499, 7 Sup. Ct. 311, 30 L. Ed. 486. Other-plication of the rule where substantial juswise, the wrongdoer goes unwhipped of jus- tice can be meted out in the final disposition tice in every case where fraud is practiced of the case." on the improvident or poor, who forsooth have spent some of what was obtained in the deal before discovering the fraud. From the evidence in the case the suggestion is near at hand that plaintiff was induced to go to Norway in the hope that he would remain there, and thus the conduct of Sandager and defendant could never be questioned. If this be so, and if the large expense of such trip necessarily came from the money obtained from defendant, so that now it is impossible for plaintiff to restore what is spent and gone, it amounts to a denial of justice to plaintiff to require him to pay back the amount received as a condi As would be to deny justice to plaintiff. In fact, this action is equivalent to a direct application in the action settled and dismissed to set aside the settlement and dismissal and proceed to trial. Mr. Justice Bunn, in the Marple Case, supra, after considering the cases therein cited upon the necessity of first returning what was obtained under the tainted contract, concludes that: "The real ground of all the cases, we think, is that there is no reason for the strict ap There is nothing in the cases relied on by defendant contrary to the view above expressed. Carlton v. Hulett, 49 Minn. 308, 51 N. W. 1053, and in the second appeal Carlton v. Carey, 61 Minn. 318, 63 N. W. 611; Knappen v. Freeman, 47 Minn. 491, 50 N. W. 533; Nelson v. Carlson, 54 Minn. 90, 55 N. W. 821. These are cases to set aside real estate transactions or trades. Even in such actions, restoration in kind is not always required before the court decrees rescission, but in each case the court aims at substantial justice, and will not allow the one guilty of fraud to escape from the consequences of his acts, because the defrauded one is un able, technically, to comply with the rule re- | fendants were directors or officers thereof. quiring restoration. [3] There is no merit in defendant's contention that because an order was made December 22, 1910, denying plaintiff's motion to modify the findings of fact and conclusions of law, notice of which was duly served on plaintiff December 24, 1910, and no appeal taken within the time allowed by statute, plaintiff is too late in asking a review thereof in this appeal. The answer is: It was not an appealable order, and there fore the error, if any, in its denial, may be reached only on appeal from the judgment where no motion for a new trial has been made. Therefore, as long as the judgment may be attacked on appeal, every nonappealable order made before its rendition is subject to review. The judgment appealed from must be reversed, and the cause remitted to the court below, to ascertain and determine how much, if any at all, of the amount plaintiff received on the fraudulent settlement he is able to repay before trial of his said personal injury action against defendant, and to modify the conclusions of law in accordance with this opinion. FIRST NAT. BANK OF RUSH CITY v. RUSH CITY STARCH CO. et al. (Supreme Court of Minnesota. July 19, 1912.) (Syllabus by the Court.) ALTERATION OF INSTRUMENTS (§ 29*)-EviDENCE SUFFICIENCY. The evidence sustains the findings to the effect that there was no alteration of a promissory note after delivery to payee, so as to release the makers or guarantors. [Ed. Note.-For other cases, see Alteration of Instruments, Cent. Dig. §§ 259–263; Dec. Dig. § 29.*] Appeal from District Court, Chisago County; P. H. Stolberg, Judge. Action by the First National Bank of Rush City against the Rush City Starch Company and others. Judgment for plaintiff. From an order denying a new trial, defendants John Anderson and others appeal. Affirmed. On the date mentioned the corporation executed and delivered to plaintiff its promissory note for $800; the other defendants having guaranteed its payment. It was alleged in the complaint, and the court found, that thereafter more money was needed by the Starch Company, and other notes given therefor, and in renewal of the one first mentioned. On April 23, 1908, two notes were executed for the benefit of the company, due October 23, 1908, each for $2,700. One of these purported on its face to be the note of the defendant corporation. The other purported to be the note of "John Anderson, Pr's.," and C. M. Johnson. All four defendants guaranteed payment of both notes. It would seem from the evidence that so large a loan could not be made direct to the Starch Company because of the federal banking regulations, therefore one note was executed so as to appear to be the individual note of the president and secretary of the company. These notes were not paid, but were renewed when due, October 23, 1908. These renewal notes are the ones in suit. The one was executed by the corporation, and payment guaranteed by the other defendants. Liability on this note is not denied. The other note for $2,700 the defendants John Anderson, C. N. Hansen, and J. P. Johnson claim they are not liable on. The defendant corporation and C. M. Johnson are in default. It appears that this note in dispute was signed by John Anderson and C. M. Johnson as makers, but through the signature C. M. Johnson three red ink lines are drawn. Then on the back thereof is imprinted with a rubber stamp the usual guaranty, waiver of notice, and consent to extensions. The blank therein for the insertion of "I" or "we" is not filled in, nor the date at the bottom, nor is there any signature on the line designated in the stamp as the proper place for a guarantor to sign; but a half inch below appear the signatures, one below the other in this order: C. M. Johnson. C. N. Hansen. J. B. Johnson. John Anderson answered separately, and alleged that he signed the note, believing it to be the sole note of the Starch Company, and that he, with the three other officers, were to incur liability only as guarantors. He further alleged that C. M. Johnson sign S. G. L. Roberts, of Pine City, for appellants Johnson and Hansen. Daniel Murphy, of Rush City, for appellant Anderson. Alfred P. Stolberg, of Center City, for respond-ed with him as joint maker; that after deent. HOLT, J. The action, brought on two promissory notes, of $2,700 each, was tried to the court and judgment ordered in plaintiff's favor for the amount unpaid. The appeal is from the order denying the answering defendants' motion for a new trial. The defendant Rush City Starch Company is a corporation, and during all the time since March 11, 1907, the other four de livery the note was fraudulently altered by the name of C. M. Johnson, as maker, being canceled and indorsed as guarantor only. The defense of C. N. Hansen and J. B. Johnson is that after the making and delivery of the note "the said C. M. Johnson, one of the defendants herein, with the knowledge and consent of the plaintiff, and without the consent or knowledge of either of these defendants, materially altered said note, by striking off his signature as joint maker thereof with said John Anderson, and adding | and indorsed on the note instead, that, after his signature thereto with said defendants he signed on the face of the note, it came J. P. Johnson and C. N. Hansen as one of the guarantors of said note." John Anderson, who was president of the Starch Company, testified that he had signed so many notes that he did not remember very well the circumstances of signing the note in question. He, however, claimed that he understood he signed as president and as guarantor. When asked what influence was brought to bear on him by the officers or creditors of the Starch Company to induce him to sign, his answer was: "I remember it was an agreement between the directors to renew the note that was due then, and in that case we went in to sign. I signed, as I said before, as guarantor-go in equal with the rest of them when I signed the note." He further testified that there was no understanding that he and C. M. Johnson should be responsible primarily for payment, but that all four should be equally held. It also appears that in the note of which this is a renewal, while Anderson signed as maker thereof, he added "Pr's." to his signature. No such addition was made to the note in suit, nor did he sign as guarantor. It is plain, upon defendant Anderson's own version of the transaction, he can have no defense. He does not claim that when he signed C. M. Johnson's name appeared on the face of the note. He does not claim that any officer of plaintiff misled him in the least, or requested him to sign the note, either as individual or as an officer of the Starch Company. The court found, after setting out the note in extenso, with the signatures thereto as hereinbefore indicated: "That the signatures to said note were appended thereto by the said defendants in order and manner hereinbefore set forth, and that the signature of C. M. Johnson on the face of the note was struck out as herein indicated before he signed the said note on the back. That said defendants, John Anderson, C. M. Johnson, C. N. Hansen, and J. P. Johnson, at the time of signing said note intended to and did make, execute, and deliver said note to plaintiff as their joint and several note, guaranteeing the payment of the indebtedness then due and owing by said Rush City Starch Company to plaintiff, and as a renewal of note" hereinbefore described. The errors assigned by the defendants Johnson and Hansen relate to the sufficiency of the evidence to sustain the findings. If the evidence supports the findings quoted, these two defendants cannot prevail on this appeal; for it is clear that the findings made negative the defense that there was a material alteration of the note after delivery thereof to plaintiff. Mr. C. M. Johnson was called as a witness, and gave as a reason why his signature was stricken out as maker, to his mind that as an individual borrower from the bank his name as maker on this $2,700 note would exceed the limit of the amount the bank could lawfully loan to one person; that thereupon the lines were drawn through his signature under John Anderson's name, and he signed his name on the back of the note, neither Hansen nor J. P. Johnson having then signed. To the same effect was the testimony of the cashier of the plaintiff, except that it might be inferred that, although C. M. Johnson's signature was indorsed on the note before Hansen and J. P. Johnson indorsed theirs, the red ink lines were not drawn through C. M. Johnson's name as maker till after, but all was done prior to acceptance of the note. Of course, Hansen and J. P. Johnson testify that, when they indorsed their names, C. M. Johnson's name did not appear, except as maker; but neither could give any good reason why Anderson and C. M. Johnson should be primarily liable. J. P. Johnson states he was the first to indorse the note, yet his signature is below the other two. He claims the blank guaranty contract stamp was on there, yet his signature is not in the space there provided, but an inch and a half below. We have carefully examined the record, and come to the conclusion that the evidence amply sustains the findings of the court. The order is affirmed. JOHN S. BRADSTREET CO. v. FOUR TRACTION AUTO CO. (Supreme Court of Minnesota. July 12, 1912.) (Syllabus by the Court.) 1. PLEADING (§ 369*)—MOTIONS-ELECTION BETWEEN CAUSES OF ACTION. Allegations suggestive of a breach of war. ranty of personal property sold, but which, standing alone, were insufficient to state a cause of action therefor, held not to require the plaintiff to elect whether to rely upon a breach of warranty or upon a mutual rescission and promise to repay the purchase price paid; a cause of action predicated upon the latter being sufficiently alleged. Cent. Dig. §§ 1199-1209; Dec. Dig. § 369.*] [Ed. Note. For other cases, see Pleading, 2. SALES (§ 397*)—REMEDIES OF PURCHASERRECOVERY OF PRICE-ADMISSIBILITY OF EV IDENCE. Where there is a conflict in the testimony of witnesses relevant to the issue, evidence of collateral facts, which has a direct corroborating tendency, is admissible, but must be received with caution. Applying this rule, evidence tending to show a breach of warranty of an automobile, and in general disparagement thereof, held inadmissible upon an issue as to whether the defendant had agreed to take back the machine and to repay to the plaintiff the amount paid by the latter on the purchase price; it not appearing that the defendant had knowledge of the claimed defects at the time *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes |