it was error to permit the plaintiffs' experts to testify that the tank was constructed in accordance with the plans and specifications, without disclosing any knowledge of how or of what materials it was in fact constructed. Order reversed and new trial granted. KEYSTONE MFG. CO. v. HOWE. (Supreme Court of Minnesota. May 8, 1903.) FOREIGN CORPORATIONS-RIGHT TO DO BUSINESS. 1. Laws 1899, p. 68, c. 69, making it unlawful for foreign corporations to do business in this state without first complying with its requirements, has no application to the contracts of such corporations entered into before its enactment. (Syllabus by the Court.) Appeal from District Court, Renville County; Gorham Powers, Judge. Action by the Keystone Manufacturing Company against O. H. Howe. Judgment for plaintiff. From an order denying a new trial, defendant appeals. Affirmed. Daly & Barnard, for appellant. George S. Grimes, for respondent. COLLINS, J. By the terms of a contract between plaintiff, a corporation, and defendant, entered into in January, 1889, the defendant was appointed agent to sell corn huskers manufactured by plaintiff, and, as compensation, was to receive certain commissions upon such sales. It was also agreed that, in case any of the articles sold should be returned by the purchasers to plaintiff, no commission should be allowed defendant on account of such sales; and, if commissions had been paid prior to a return of the articles, the amount was to be returned by defendant to plaintiff. In March of that year defendant sold and delivered one of these corn huskers to certain parties. He received the purchase price of the machine, and retained the amount of his commission as agreed upon, remitting the balance to plaintiff. On or before December of the same year, and after Laws 1899, p. 68, c. 69, went into effect, July 1, 1899, the husker was returned to the plaintiff because of an alleged breach of warranty. This action was subsequently brought to recover of the defendant the amount of commission for this machine received and retained by him, as before stated. It is admitted that the plaintiff, a foreign corporation, has not complied with the provisions of chapter 69, supra, and this fact was interposed as a defense in this action. It is also conceded that the cause of action accrued out of a perfectly lawful transaction-a contract and a sale thereunder made before the law of 1899 went into effect. It did not grow out of any business which this plaintiff was transacting in disregard of the statute. Construing this statute, it was held in Heileman Brewing Co. v. Peimeisl, 85 Minn. 121, 88 N. W. 441, that an action could not be maintained in the courts of this state upon any contract or demand growing out of business transacted by a foreign corporation in disregard of its provisions. It has been uniformly decided elsewhere that a statute making it unlawful for foreign corporations to do business in a state without first complying with its requirements has no application to contracts of such corporation made before the enactment of the law. 13 Amer. & Eng. Ency. Law (2d Ed.) 881, and cases cited. The reason for this rule is perfectly plain. A law which expressly or by implication takes away, abolishes, diminishes, suspends, or destroys the obligation of a contract, by repealing or abolishing the remedy thereon, is a clear invasion of constitutional rights. Therefore Laws 1899, p. 68, c. 69, making it unlawful for foreign corporations to do business in this state without first complying with its requirements, has no application to the contracts of such corporations entered into before its enactment. Order affirmed. STATE v. GALLEHUGH. (Supreme Court of Minnesota. May 8, 1903.) HOMICIDE-EVIDENCE-NEW TRIAL-DISQUALIFICATION OF JUROR. 1. Defendant was prosecuted for the willful murder of C. The homicidal act was admitted, but excused upon the justification of self-defense; defendant claiming that he had received information that C. had grossly insulted his wife, and proposed to inflict personal chastisement upon him therefor; that in attempting to execute this intention upon the person of C., but with no design to take his life, he discovered that the latter was approaching him, armed with a deadly weapon, under circumstances which justly excited the belief that his own life was in danger, and, being influenced by fear for his safety, he shot and killed C. Testimony for the defense was received which supported this claim. There was also evidence for the state tending to show that C. was unarmed, and that defendant was in no danger of grievous bodily harm from deceased, which presented a question of fact for the jury. Upon this conflict, held, that the verdict, finding defendant guilty of murder in the second de gree, is supported by the measure of proof required to sustain a conviction in criminal cases. 2. When defendant had shot and killed the deceased, he left the place of the homicide. Shortly afterwards the police arrived upon the scene, and it was proposed to show that defendant's wife then made a statement asserting that the victim of the homicide had a knife in his hand, which she had seen during the transaction. This was excluded. Held, that such narration of a past transaction was not a part of the res gestæ, and was inadmissible. 3. Witnesses for the state, who testified that they had seen the homicide, were asked on rebuttal, for the purpose of impeachment, wheth er, when asked, "Who saw the shooting?" by the police officers, upon their arrival immediately thereafter, one of them had pointed to another person and said, "She saw it," while the other remained silent. Held, that this evidence was not a substantial contradiction of the testimony of the witnesses sought to be impeached, or reasonably tending to contradict their account of what previously occurre 4. The victim of the homicide was a colored man, who, it was claimed, had insulted defendant's wife, Defendant, a white man, testified in his own behalf that he had not stated that "he would as lief kill a black devil as not," but made voluntary explanation as to what he did say with reference thereto in a conversation had with his wife during the previous afternoon. On rebuttal, witnesses who heard this conversation were permitted to state that defendant did make the obnoxious statement referred to. Held, that the admission of this evidence was proper rebuttal, and tended to show the intent of defendant. 5. Upon motion for a new trial, affidavits were offered and received to show that one of the jurors had expressed hostile feelings to the defendant, which would have properly justified his exclusion from the panel. These affidavits were fully met and answered by the affidavit of the juror himself, which presented an issue of fact. Held, that the trial court did not abuse its discretion in the determination of this issue in favor of the state. (Syllabus by the Court.) Appeal from District Court, Hennepin Coun. ty; David F. Simpson, Judge. Herbert G. Gallehugh was convicted of murder in the second degree, and appeals. Af firmed. T. A. Garrity, for appellant. W. B. Doug. las, Atty. Gen., Fred H. Boardman, Co. Atty., C. S. Jelly, Asst. Co. Atty., and C. W. Somerby, Asst. Atty. Gen., for the State. LOVELY, J. Defendant was prosecuted upon an indictment charging murder in the first degree, for having feloniously killed one Charles Collins by shooting him with a revolver in the city of Minneapolis on the 7th of March, 1902. At the trial the homicidal act was admitted, but excused on the claim that the killing was in self-defense. After submission of the cause to the jury upon instructions defining the degrees of homicide, defendant was convicted of murder in the second degree, and sentenced to imprisonment for life. Upon a settled case containing the entire evidence, a motion for a new trial was made, based upon alleged errors of the court in the exclusion of testimony, and also upon affidavits to show that one of the jurors was disqualified to sit in the case. The motion was denied, and defendant appeals. Collins, the victim of the homicide, was the colored chef of the San Angelo Hotel, in Minneapolis, and was shot and killed by defendant while engaged in serving supper in the kitchen of that building. Defendant, a white man 25 years of age, not connected with the hotel, was at the time paying a visit to his wife, who was employed as a domestic therein. The circumstances attending the homicide were witnessed by three female employés of the hotel, who were present in the kitchen at the time, and were examined as witnesses for the state. One of them (Martha Olsen) stated: That she went into the kitchen with a tray of dishes about 7 o'clock in the evening. That defendant was there, seated, talking privately with his wife. Collins was standing a few feet from defendant, on the other side of an intervening table, at the range, getting aD order ready. That his back was towards the defendant, when the latter suddenly arose, left his wife, stepped to the table, and said to Collins, "Come here." The chef turned, and in reply said, "Why, what do you want?" Defendant then pulled a revolver from his right hip pocket and said, "Take your place." Mrs. Gallehugh (defendant's wife) then rushed forward, threw her arms around her husband, and said, "Don't! Don't!" Collins in the meantime advanced to defendant, who within four or five seconds fired. Collins received the shot, and instantly fell to the floor. That defendant then stooped over the fallen man and shot him the second time where he lay. The witness then left the room. As she did so, she said she saw defendant run out of the kitchen without his hat, which had fallen from his hand. She further stated that she distinctly saw the hands and actions of both parties during the whole transaction; that at no time was Collins armed with any weapon; also that defendant had the revolver in his hand before he made the demands upon his victim to "come here" and "take your place." The testimony of this witness was corroborated in every material respect by two other domestics who were in the kitchen, each stat ing positively that Collins was unarmed, and did not have a knife in his hand. The defendant and his wife testified that the deceased had a knife in his hand, which fell upon the floor as he dropped. There is no intimation by any one else, including others who came into the room soon afterwards, that any knife was found upon the floor, while one of them positively denied that any such weapon was there. The narrative of previous events upon which defendant relied in explanation of his conduct was given at the trial by himself and his wife, in which it was stated substantially by each: That, on the day previous to the shooting, Mrs. Galle hugh was assaulted in the laundry and insulted by Collins. That on the day after this assault, during the afternoon, defendant called upon his wife, and stayed with her a short time in the quarters occupied by the female help. At this time she did not inform him of the occurrence in the laundry, but did tell him that a previous indecent proposition had been made to her by Collins. That in the presence of some of the female employés a statement was made that colored male servants of the hotel had chased some of the white girls who worked there, which led the defendant to make remarks in connection therewith, but he left his wife after a visit of some 10 minutes, and returned about 7 o'clock in the evening to bid her good-by, as he was going to Chicago. He then went into the kitchen, where his wife, the chef, and several girls were at work, attending to the serving of supper for the guests of the hotel. Mrs. Gallehugh said to her husband, shortly after he came in, that she did not want to work at the place any longer, and would tell him the reason why as soon as she could. That within 15 minutes afterwards, and while defendant was seated, she came to him, and gave the specific details of the injury she had suffered at the hands of the chef in the laundry, when defendant became so enraged that he rose up with the fixed purpose of inflicting personal chastisement upon Collins, or, to use his own language, "to give him the best thrashing he ever had in his life," but without any intention of shooting him. With this purpose only, he says, he called out, "Come here." At this time Collins was seated at the table, watching him; and, when the latter said "Come here," the chef rose up, and moved around the same until he was three or four feet distant. Mrs. Gallehugh, as she states, saw that her husband was excited, and, discovering that Collins had a knife in his hands, threw her arm around her husband and exclaimed, "Don't! Don't!" Defendant says he then discovered the knife, which he describes minutely, and, under fear that he would be injured, pushed his wife away, pulled his revolver from his right hip pocket, and fired two shots into the body of the deceased while he was standing in front of him. As indicated above, in the respective claims of the prosecution and defense there were decided and material variances. On the one hand, the aggressor in every respect was the defendant, who was in no danger of being stabbed by Collins, but whose apparent purpose was to take the life of an unarmed man, while, upon the other hand, the purpose of defendant went no further than to commit a battery upon the colored cook for the assault and insult he had previously offered to his wife. There is evidence in the record to support either theory, and it was obviously the duty of the jury, upon the fair and impartial presentation of the law in the instructions given by the learned trial court, to which no exceptions were taken, to determine, upon this conflict, the guilt or innocence of defendant under the rules applicable to criminal cases; and with the result we have no authority to interfere, unless the defendant's rights have been prejudiced by the errors assigned in excluding evidence offered in his behalf, or the refusal to set aside the verdict upon the ground that an incompetent juror was accepted, and allowed to participate in the trial. It was assigned as error that the wife of defendant was not permitted at the trial to testify that a short time-some six minutes after the killing, and after her husband had left the building, she stated to a member of the police force who arrived on the scene that deceased had a knife in his hand when he approached her husband. The excluded evidence in this respect obviously could not have had greater weight than to corroborate her previous statements, already given under oath, to the effect that she saw the knife in Collins' hands when he came around the table. But it is urged that such rejected matter was a part of the res gestæ, or part of the main transaction in which her husband participated. We think the court properly refused to receive the excluded statement. What Mrs. Gallehugh stated about the transaction after it was over was no part of it, or of any of the undesigned incidents of the particular act for which defendant was prosecuted; nor do we think that it was reasonably illustrative thereof. It was, at best, a narrative of a past transaction, which she had already testified to While it might afford an inference for the argument that she would not, so soon after the killing, have referred to the knife, if she had not seen it, and it had not been in her mind at the time, it partakes, however, of the character of a self-serving and doubtful confirmation by herself of what she had already stated, because she repeated it again to third parties, which, upon the most substantial grounds, is not permissible as a part of the res gestæ. Jones on Evidence, §§ 348366; Conlan v. Grace, 36 Minn. 276, 30 N. W. 880. It was attempted to impeach the testimony of two of the female witnesses who testified to the incidents of the homicide by showing that when the police arrived at the scene the question was asked generally of those present, among whom were these girls, by Officer Brackett, "Who saw the shooting?" and that one of them pointed to Martha Olsen, and said, "She saw it," while the other remained silent. It is insisted that neither of these young women would have pursued this course if they had themselves witnessed the whole transaction, as each had testified. Conceding, which is doubtful, that the foundation had been laid to contradict the denial of these witnesses that such declaration had been made, we are unable to adopt counsel's inference that if one of these witnesses pointed to Martha Olsen, and the other remained silent, either act was inconsistent with their previous evidence, in which they gave a full and detailed narration of the transaction, or was equivalent to a statement by either that she did not see the shooting; and we discover no merit in these assignments. It is urged that the court erred in permitting one of the witnesses (Emma Anderson), who was present at the conversation between defendant and his wife on the afternoon of the day of the homicide, upon being called in rebuttal, to answer the following question: "During the conversation there between his (defendant's) wife and himself, did you hear him say, 'I just as lief shoot a black devil as not'?" To understand the relevancy of this assignment, it is necessary to state that counsel for the accused, on his direct examination, had asked him whether, at the time referred to, he had made a statement that "he would just as lief kill a black devil as not, or words substantially to that effect," to which he replied that he did not. Immediately previous to the time referred to, de fendant's wife had told him that two colored men had chased two white girls who had come running into the servants' quarters, and told her of it. Defendant explained, in this connection, and in reference to this matter, "I spoke up and told them [his wife and other domestics] if that had been in the South, I said, they certainly would hang for it." There was also evidence that defendant's wife had told her husband at this visit that she had received improper proposals, affecting her honor, from Collins, some days before; and the evidence in rebuttal, assigned as error, was to contradict the denial of defendant that he had used what was evidently regarded as language indicating a hostile feeling to the deceased on account of his color. Ordinarily it would be sufficient to say in answer to this claim of error that the voluntary denial of the use of the language, to which defendant's counsel attached sufficient importance to justify its contradiction, would authorize the admitted evidence; but, further than this, the relation of the defendant to the deceased became, in view of what he had already been told of the conduct of the latter in connection with the detailed statement he received from his wife at the time of the killing, of some materiality, to characterize his intent, engendered by a specific antipathy towards the race to which deceased belonged, sufficient to authorize its admission to show malice, and whether he was, as he claimed, merely disposed to commit a battery, only, or the deed for which he was prosecuted. Lastly it is assigned as error that the court refused to grant a new trial upon the ground that one of the jurors entered upon the trial of the cause with a fixed opinion of defendant's guilt. The showing upon this contention was presented to the court by affidavits of persons who claimed to have had conversations with this juror prior to the time he was summoned on the panel. In opposition to these affidavits, the state produced the affidavit of the juror himself, in which he, at length and in detail, decidedly contradicted and denied the statements attributed to him in the affidavits made in support of the motion. It has been often held that courts of review will not consider the grounds of decision by the trial court upon an issue of this kind where the affidavits tending to show the previous bias of the juror are met and contradicted by the juror himself. Hilliard on New Trials, p. 47, and cases cited. The most that can be claimed for defendant upon this assignment is that the showing made in his behalf before the court was so palpably against the weight of evidence that it abused its discretion in denying the motion. We have considered the affidavits, and, upon a careful examination of their contents and purport, are required to say that we are satisfied that we would not be justified in holding that the court below abused its discretion in this respect. We have given to the examination of this record careful and patient attention, since the result is of the most serious consequence, and have reviewed every question presented, without regard to the real, substantial importance of several assignments which are exceedingly technical, and are constrained, in conclusion, to say that upon the issue as distinctively made by defendant, through which he presented his justification of selfdefense, the evidence amply supports the ver dict; and we are unable to find any prejudicial ruling of the trial court against him upon the alleged grounds wherein he challenges our judgment. The order of the trial court must be af firmed. HANEY SCHOOL FURNITURE CO. ▼. SCHOOL DIST. NO. 1, CRYSTAL LAKE TP., BENZIE COUNTY. (Supreme Court of Michigan. May 12, 1903) SCHOOL DISTRICTS - CONTRACTS - RATIFICATION-EVIDENCE-SUFFICIENCY-INTEREST-RIGHT TO RECOVER. 1. Plaintiff and defendant school district, through its moderator and director, entered inte a written contract for school supplies. The goods were delivered, accepted, and used without objection, and payments made thereon. At the annual meeting following the execution of the contract, it was brought before the voters, and no objection made thereto. A warrant was issued and negotiated for the balance due under the contract, and was subsequently paid by the assessor out of the general fund of the district, and the payments were approved by the district. Held that, although there was no formal authorization of the contract, an adop tion and ratification were established, so as to entitle plaintiff to sue for unpaid interest on the warrant. Error to Circuit Court, Benzie County; Clyde C. Chittenden, Judge. Action by the Haney School Furniture Company against School District No. 1 of Crystal Lake township, Benzie county. From a judgment for plaintiff, defendant brings error. Affirmed. Plaintiff and defendant, through its moderator and director, entered into a written contract for 400 school desks and other articles, dated August 27, 1894. The plaintiff delivered the goods. They were accepted, and have remained in its possession and use to the present time without objection or complaint. The defendant paid the freight on a portion of the property, such freight being allowed as part payment upon the contract. The price agreed upon was $2,165.13. The first meeting held after this contract was exe cuted was the annual school meeting, on July 9, 1895, when the following motion was made: "Moved by Mr. Warner, supported by Mr. Wood, that we raise $1,150 to make payment on school supplies and furniture to Haney School Furniture Co. Motion lost." Several payments were made by the district, and on January 1, 1895, the balance due was $1,099. 25, for which a warrant was issued, payable February 1, 1896, with interest at 6 per cent. The warrant was subsequently assigned to the Old National Bank of Grand Rapids, Mich., was sent to the Benzie County Bank, at Frankfort, for collection, and the principal was paid by the assessor out of the general funds of the district. This suit was instituted to recover the interest, $174.01. The court directed verdict and judgment for the plaintiff. N. A. Parker and D. G. F. Warner, for appellant. Parm C. Gilbert, for appellee. GRANT, J. (after stating the facts). The defense is that the school district had taken no affirmative action authorizing the contract in question, and this is conceded. We think that a formal authorization, under the undisputed facts, was not essential. The contract was made by the officers of the district. The furniture was delivered, accepted, and used. We think that it is conclusively established that the contract was adopted and ratified by the district. At the annual meeting following, this contract was brought before the voters of the district, and no objection was made to it. At the same meeting a committee of five was appointed to investigate the expenditure of moneys appropriated and expended, and report at some future time. It does not appear that any report was made. Payments were made, and finally a settlement was made, for which the warrant in suit was given. The entire principal was paid, and the payments reported to the district, approved, and adopted. If the principal was due, the interest was also due. The defendant cannot recognize the contract to be valid as to the principal, and invalid as to the interest. We think the court was correct in directing a verdict. Jones v. School Dist., 110 Mich. 363, 68 N. W. 222. Judgment affirmed. The other Justices concurred. HUBBARD et al. v. FREIBURGER et al. (Supreme Court of Michigan. May 12, 1903.) CONTRACTS-AGAINST PUBLIC POLICY-ACTION ON NOTE-FAILURE OF CONSIDERATIONPLEADINGS IN JUSTICE COURT-GENERAL ISSUE-DEFENSES ADMISSIBLE UNDER GENERAL ISSUE-NOTICE OF DEFENSE. * * 1. A paper read as follows: "Return this coupon to dealer in buggies," etc., "with $15, for which he will deliver to you a book with four of these coupons. Sell these for $3.75 each, thereby getting your money back. Each of those to whom you sell a coupon sends to me, purchasing a book for themselves. When your four coupons have been sent in, I have received $60, and you will be entitled to $60 worth of merchandise at my store, and it costs you but $3.75 and a few hours' work selling the coupons. The right to redeem all coupons at any time is hereby reserved, and parties holding them shall be allowed the full value on the purchase price of any article in my establishment. Coupons will not be redeemable in any other * * * * manner than as above specified." Held against public policy. 2. Comp. Laws, § 767, relating to pleadings in justices' courts, provides that the plea of the general issue shall be in the same form as in the circuit courts, and notice of any defense not admissible under the general issue shall be given with such plea. Section 769, under the same title, "Of 'leadings and Set-Offs," provides that a failure of consideration may be shown in defense to any action or set-off on or arising out of any note, except when negotiated before falling due, to any person not having knowledge of such defense. Section 828, under the title "Trial of Causes,' provides that a failure of consideration may be given in evidence in any action or set-off on or arising out of any contract, except negotiable instrun enis, negotiated before they become due, to persons not having notice of such defense, but in actions on such latter contracts evidence of a partial failure or want of consideration shall not be admitted unless notice of such defense is given. Held, that in an action on a note, where defendants pleaded the general issue, and offered to show that plaintiffs knew, at the time of purchasing the note, that it was procured without consideration, such defense of a total failure of consideration should have been admitted under the plea, and without notice. 3. Where a note is based on a contract void as against public policy, the note is without any consideration. MONTGOMERY, J. This is an action based on a promissory note for $15 given by defendant Paul Freiburger to another. The plaintiff recovered a verdict by direction of the court. Judgment was entered upon this verdict, and defendants bring error. The pleading on the part of the defendants was the general issue. On the trial the defendants offered to show that the sole consideration for this note was an engagement or contract given out by the payee, Oscar Auton, which, after reciting that, unless cash was remitted for coupon books, the goods would be held until the notes were paid, proceeded as follows: "How to Obtain a $60 Buggy for $3.75. Return this coupon to Oscar Auton, Gagetown, Tuscola County, Michigan, dealer in buggies, wagons and agricultural implements of all kinds, with $15, for which he will deliver to you a book of four of these coupons. Sell these coupons for $3.75 each, thereby getting your $15 back. Each of those to whom you sell a coupon sends to me, purchasing a book for themselves. When your four coupons have been sent in to me this way you readily see I have received $60, and you will be entitled to $60 worth of merchandise at my store and it costs you but $3.75 and a few hours' work selling the coupons. The right to redeem all coupons at any time is hereby re |