PARTIES. See EQUITY, 3. MUNICIPAL CORPORATIONS, 15. SURETYSHIP, 2. 1. Where a public corporation has a cause of action which should be prosecuted for its use, whether legal or equitable, and its governing body neglects and refuses to institute an action therefor, a taxpayer may, on behalf of himself and all others similarly situated, institute an action in equity to redress the wrong to the corporation, making it a defendant as trustee for all its members. Land, Log & Lumber Co. v. McIntyre, 245 2. Thirty-one persons, by written agreement, formed a "syndicate" to purchase, manage, and sell a tract of land, each agreeing to contribute a certain sum at once and thereafter to pay from time to time such sums as should be needed for payments on the land. One of their number was agreed upon as trustee to hold the title to the land, and he afterwards, in writing, declared a trust in favor of each of the subscribers to the extent of a one-thirty-first interest in the land. Meetings were held and assessments made to meet the payments becoming due on the land. Subsequently, by a resolution adopted at a meeting of the subscribers, plaintiff was authorized and directed to bring suit in his individual name, for and in behalf of himself and his associates, to collect the amount due upon said assessments from the defendant, one of the subscribers, who had accepted the declaration of trust and had attended meetings, but had paid only the first assessment. Held, that the subscribers were all united in interest and were, in legal effect, partners, so that the action could not be maintained by one on behalf of all, under sec. 2604, R. S. 1878, either on the ground that the question was one of a common or general interest to many persons, or on the ground that the parties interested were so numerous that it was impracticable to bring them all before the court. George v. Benjamin, 622 3. The action in the name of one only, on behalf of all, could not be sustained, in such case, on the ground that the syndicate was an "unincorporated company" or a "voluntary association," nothing having been done to give it the characteristics of such organizations, except to elect officers. Ibid. PARTNERSHIP. See COSTS, 1. PARTIES, 2, 3. 1. An agreement to form a partnership to purchase lands is within the statute of frauds and void unless in writing. Seymour v. Cushway, 580 2. Fraud is not established by the mere breach of an oral contract, void under the statute of frauds, to enter into a partnership for the purchase of standing timber. Ibid. 3. Plaintiffs and the defendants C. and H. entered into an oral agreement of copartnership, or to form a partnership, the main purpose of which was the purchase of certain standing timber. Before any interest in the timber had been acquired, and before plaintiffs had done anything in the way of performing the agreement, said defendants repudiated it and entered into partnership with the defendant S. to purchase the same timber, and the purchase was made by them without any fraud, concealment, or misrepresentation. The plaint iffs paid no part of the consideration for the timber, and contributed nothing either of time, labor, or money, to the business of the firm which made the purchase, and had not, in any way, altered their position on the faith of any promise made to them by any of the defendants. Held, that plaintiffs had no interest in the timber, legal or equitable, no trust in their favor arising from the facts. Ibid. 4. Prior to the making of the oral agreement with plaintiffs, the defendants C. and H. had made a written agreement between themselves, reciting the contemplated purchase of timber and stating that C. was to conduct the negotiations with the owners and was to receive one fourth of the profits, and H. and those associated with him were to furnish the necessary capital and were to receive three fourths of the profits. Held, that this was not a sufficient writing to satisfy the requirements of the statute of frauds in respect to the agreement with plaintiffs, because they were not parties to it, and because it did not contain the essential terms of that agreement. Ibid. 5. The doctrine that equity will not allow the statute of frauds to be made an instrument of fraud has no application to such a case. Ibid. 6. For the breach of the oral agreement of partnership to which plaintiffs were parties, their remedy, if any, is at law, not in equity." Ibid. 7. The obligation of a person to contribute to the purposes of a land "syndicate," according to a subscription agreement which created the relation of partners between the subscribers, may be enforced in an action at law, without a dissolution of the partnership or an accounting. George v. Benjamin, 622 PAYMENT. How to be made. See MASTER AND SERVANT, 1. MUNICIPAL CORPORATIONS, 14. Application. See JOINT DEBTORS, 3. PLEDGES, 2. PHYSICIANS AND SURGEONS. See DAMAGES, 3. EVIDENCE, 2. PLACE of holding circuit court. See COURTS. 7, 8. PLANS for public improvements. See MUNICIPAL CORPORATIONS, 4, 5. PLEADING. See AGENCY, 2. ATTACHMENT. BILLS AND NOTES, 1. CERTIORARI, 3, 4. DAMAGES, 1. HIGHWAYS, 1. LANDLORD AND TENANT, 3. MUNICI- 1. A defendant known indiscriminately by either of two names may properly be designated by both in the title of the action, if they are used in such a manner as to indicate clearly that but one person is sued. O. L. Packard M. Co. v. Laev, 644 2. In an action to recover for architects' services, a complaint alleging that between certain dates the plaintiffs, at the special instance and request of the defendant, performed work, labor, and services in the preparation of plans which were actually used in the erection and construction of a building on defendant's land, and in superintending such construction, and that a certain sum was then due the plaintiffs by reason of the premises, over and above all payments, is held sufficient. Messmer v. Block, 664 3. In an action upon an agreement to contribute, with others, the sums needed for payments on land purchased by a "syndicate," if the defendant desired further information than was contained in the complaint as to the times when the instalments became due on the land contract, his remedy was by motion, not by demurrer to the complaint. George v. Benjamin, PLEDGES AND COLLATERAL SECURITY. See JOINT DEBTORS, 2. 622 1. A promissory note secured by collaterals provided that “if recourse is had to the collaterals, any excess of collaterals upon this note shall be applicable to any other note or claim held by said holder against the maker or makers hereof." Held, that "recourse to collaterals" meant an actual sale thereof, and that where notice of an intention to sell had been given, but by agreement the sale had been postponed, a tender of the amount due on the note before the sale took place superseded the authority to sell, and redeemed the collaterals, leaving no right to have any excess in their value applied on other claims. Winkler v. Magdeburg, 421 2. The proceeds of collaterals pledged to secure a specific debt can only be applied to the payment of that debt. First Nat. Bank v. Finck, 446 POSSESSION. See VOLUNTARY ASSIGNMENT, 1–3, 5. Of chattels. BOUNDARIES. PRACTICE. See APPEAL AND ERROR. ATTACHMENT. CERTIORARI CONTRACTS, 4. COSTS. COURT AND JURY. COURTS. CRIMINAL LAW. DAMAGES, 1. ELECTIONS, 1. EVIDENCE. GARNISHMENT. INSTRUCTIONS TO JURY. JUDGMENT. JURORS. MORTGAGES. NEW TRIAL. PARTIES. PLEAD ING. RAILROADS, 13. VERDICT. VOLUNTARY ASSIGNMENT. Allowing the plaintiff in an action for personal injuries to exhibit her actual condition to the jury by lying on a lounge, with her physician attending her, when her testimony was taken, and allowing her daughter to weep, are not grounds for reversal of a judgment in her favor. Selleck v. Janesville, 157 PREFERENCES. See BUILDING AND LOAN ASSOCIATIONS, 8. CONSTITUTIONAL LAW, 2. PRESUMPTIONS. See BOUNDARIES. COURTS, 5. FRAUD, 1, 2. RAILROADS, 17. PRINCIPAL AND AGENT. See AGENCY. PRINCIPAL AND SURETY. See SURETYSHIP. PROMISSORY NOTES. See JOINT DEBTORS, 2, 3. BILLS AND NOTES. CHATTEL MORTGAGES. PUBLIC LANDS. See RAILROADS, 1–5. A pre-emptor, after filing a declaratory statement covering one tract of land, wholly abandoned his pretended settlement and alleged pre-emption claim thereon, and filed a subsequent or amended state ment covering another tract, upon which he actually settled, and of which he obtained a patent as a pre-emptor. Held, that such acts operated as a cancellation or relinquishment of the first declaratory statement, and restored the public character of the lands covered thereby. Sanborn v. Knight, PUBLIC SCHOOLS. See COMMON SCHOOLS. QUO WARRANTO. See MANDAMUS. RAILROADS. 216 Land grants: Selection of terminus: Consolidation of roads: Maps. 1. The act of Congress, July 2, 1864, authorizing the Northern Pacific Railroad Company, thereby incorporated, to construct a railroad, "beginning at a point on Lake Superior, in the state of Minnesota or Wisconsin, thence westerly by the most eligible route to some point on Puget Sound," left the exact location of both termini to the decision of the corporation itself. Northern Pacific R. Co. v. Doherty, 39 2. Under said act, the selection of a terminus, once deliberately made, was final and exhausted the power of choice. Ibid. 3. The company was not, however, by the terms of the act, confined to a single point on Lake Superior; .and, the shore line of the lake being parallel with the necessary route of the proposed railroad, the mere fact that the road had touched a harbor at the west end of the lake did not deprive the company of power to select, as its terminus, a point farther eastward on said lake. Ibid. 4. The purchase by the Northern Pacific Railroad Company of a half interest in the track of another company between Duluth and a point west thereof, and the operation of the same, in connection with its main line westward, both in common with such other company and under a lease of the other company's lines, did not constitute a consolidation, confederation, or association of the two companies such as was contemplated and authorized by sec. 3 of the act of 1864, or amount to a practical selection of Duluth as the eastern terminus of the Northern Pacific Railroad Company such as would preclude the selection of some other point for such terminus, especially since the act of Congress required that the Northern Pacific Railroad Company should obtain the consent of the legisla ture of any state through which its line might pass, and the consent of the legislature of Minnesota had been given with a proviso that, if the eastern terminus of the road should be located east of that state, then the company should construct or cause to be constructed a line from its main line to the waters of Lake Superior within the state of Minnesota. Ibid. 5. A map showing a proposed route for the proposed railroad, filed with the Secretary of the Interior by the president of the Northern Pacific Railroad Company, without any authority from its board of directors or otherwise, and rejected by the land commissioner and the Secretary because it did not comply with the rules and regulations of the land department, did not operate as a selection by the company of the eastern terminus shown thereon. Ibid. Condemnation of land: Value: Evidence. 6. In proceedings to condemn land for a railroad right of way, evidence that a deep cut would cave in and injure adjacent land of the plaintiffs not taken was not inadmissible on the ground that it tended to show negligent construction. Stolze v. Manitowoc Terminal Co. 208 7. In such a case a witness who was agent for the sale of real estate about sixty rods distant from the land in question, after having testified that he was acquainted with the market value of lots in the vicinity, that he had made sales, and what the market price of lots was, stated that he had a scale of prices of the same, and gave his opinion that such prices were the market value of the lots, and thereupon the memorandum was received in evidence. Held, that such evidence was not inadmissible on the ground that it was hearsay. Ibid. 8. Even if such memorandum was inadmissible, its admission was a harmless error, in view of the testimony which the witness had already given without objection. Ibid. 9. It was not error to permit an old resident and manufacturer who was somewhat familiar with the market price of outlying lots, or an architect or engineer who was reasonably familiar with the market price of lots, or a merchant who was treasurer of a local building and loan association and had been alderman, to give his opinion as to the value of the land taken; nor to allow the plaintiff to prove the net profits therefrom, when cultivated as a market garden. Ibid. 10. The selling price of other lands is admissible on the question of damages if the similarity in situation is near enough to afford some material assistance to the jury in determining the value of the land in controversy, the limits within which such evidence may be given being very much in the discretion of the trial court. İbid. 11. An instruction that there had been sales of other property in the neighborhood, and within a few years of the time of this sale,some more remote and some closer; that "if there was property sold on the market exactly similar to this in all respects that would be the best possible criterion as to the market value of this property;" that no claim was made that any property exactly similarly situated was sold at exactly the same time; and that in determining the weight to be given to other sales "you must consider all the elements of similarity in situation and time, and dissimilarity, and determine how far they go to establish what would be a fair market value for this particular property, at the particular time in question," is held not to have been erroneous. Ibid. Same: Appeal: Certiorari. 12. An order appointing commissioners of appraisal in a proceeding to condemn land for a railroad right of way, is a final order made by the court in a special proceeding, and hence appealable. State ex rel. C. & N. W. R. Co. v. O., A. & B. W. R. Co. 538 13. The question whether the petitioner in such a case was a railroad corporation, within the meaning of the statute authorizing condemnation, and had the right of eminent domain, may properly be determined on an appeal from the order appointing commissioners; and the remedy by appeal being adequate for that purpose, certiorari will not lie. Ibid. Gates at highway crossings: Assumption of risk by traveler. 14. The presence of gates across the highway at a railroad crossing is specific notice that the danger of going upon the right of way is immediate, and a traveler who, disregarding the warning, attempts to cross assumes all risk of injury by being struck by passing trains. Douglas v. C., M. & St. P. R. R. Co. 405 |