the value of the property conveyed to the defendant, and by it disposed of to an innocent purchaser, less the amount of plaintiff's debt and expenditures, or the amount received for the property less such debt and expenditures. While this may be true as a proposition of law, the trouble with the plaintiff's case is that he has not proved the amount or value of either, and failed to avail himself of an accounting between himself and the defendant. If the defendant had, upon his conveyance of the property to Terry, received a money consideration, or if he had taken a mortgage, which he treated As so much cash, then, upon an accounting properly had between the parties, the plaintiff would have shown himself entitled to relief and a judgment for whatever appeared to be the amount over and above the amount which he owed the defendant. But it expressly appears that the defendant did not, upon the sale of the property, receive a money consideration, or its equivalent, but the transaction was only a trade for a piece of real estate, and he received the equity of redemption in a piece of property subject to a mortgage of $40,000. When this appeared, the burden of showing the value of this equity was cast upon the plaintiff, and he could not rely upon the recital of the consideration in the deed as the actual value received by defendant in such transaction. The case cited by plaintiff's counsel-Van Orden v. Budd, 33 N. J. Eq. 564-is not similar to this. There the party selling the property took a mortgage back, and it was treated as so much cash in an accounting. The judgment appealed from is affirmed.

GILFILLAN, C. J., absent on account of sickness; took no part.

LUMBERMEN'S INS. CO. v. SPRAGUE. (Supreme Court of Minnesota. Nov. 28, 1894.) MORTGAGES-SUBROGATION TO RIGHTS OF MORT

GAGEE.

Where L. holds a mortgage security for a debt, and S. seeks to be subrogated to the rights of L. in the security, he must pay the secured debt before he is entitled to the security. And when this is done the court, in the exercise of its equitable powers, can, if necessary, compel a transfer to him of the mortgage security.

(Syllabus by the Court.)

Appeal from district court, Hennepin county: Henry G. Hicks, Judge.

Action by the Lumbermen's Insurance Company against Milton A. Sprague on notes executed by defendant to the Minnesota Loan & Trust Company, and by it transferred to plaintiff. From an order sustaining a demurrer to the answer, defendant appeals. Affirmed.

P. M. Woodman, for appellant. W. J. Hahn and J. M. Martin, for respondent.

BUCK, J. This action was brought upon three promissory notes executed by the defendant, Sprague, to the Minnesota Loan & Trust Company, and by it transferred before maturity, for value, to this plaintiff. The defendant admits the making of the notes, and alleges that they were made solely and for the purpose only of securing an exten sion in the time of the payment of the prin cipal sum of $10,000. The answer is not very explicit in regard to the making of these notes, except as to the purpose for which they were made, but from an examination of the whole record, and the admissions of the appellant's counsel in his brief, we assume that the notes in suit were given for the interest falling due upon the mortgage of $10,000 described in the answer, which had been executed upon certain real estate by one Anderson and his wife to A. B. Coe and F. W. Forman, payable in five years, and which, by various assignments, was finally transferred to plaintiff, with the note of $10,000 which it secured. The note and mortgage of $10,000 were dated November 7, 1887, payable in five years from date, with interest at the rate of 7 per cent. per annum. After the execution of the note and mortgage the premises therein described were conveyed several times to different persons, of whom defendant Sprague was one, and he conveyed the same to one Wetmore, in 1892; and, by the terms of the deed, Wetmore agreed to pay the $10,000. Wetmore owned the property at the time of the commencement of this action, and was then in possession. The contention of the defendant is that, by the terms and conditions of said conveyance, Wetmore assumed and agreed to pay said mortgage of $10,000, and interest thereon, the interest being the consideration for which the notes sued upon were given, and that Wetmore became primarily liable therefor, and that, Wetmore being in possession of said premises, defendant is powerless to protect himself against loss, should he be compelled to pay the notes sued upon. The defendant also contends that, as a condition precedent to his being compelled to pay said notes, he is entitled to have from the plaintiff an assignment of said notes sued upon, together with a pro rata interest in the mortgage securing the same.

The plaintiff interposed a demurrer to the whole of the answer, upon the ground that it appeared upon the face thereof that it did not state facts sufficient to constitute a defense. The principal note of $10,000 is still unpaid. This is owned by plaintiff, and secured by a mortgage upon the premises owned by Wetmore. That the plaintiff has a perfect right to bring suit upon these notes seems unquestionable. If the defendant desire to have the benefit of the mortgage se curity, he should pay the mortgage debt, including accrued interest. In his answer he does not offer to pay this debt, principal or interest, nor does he express any willingness

to do so. He does not bring the amount necessary for such purpose into court, nor allege that he ever tendered to the plaintiff the amount necessary to discharge the mortgage security. He certainly cannot be subrogated to the rights of the plaintiff until he pays the security held by the plaintiff, and when this is done the court, in the exercise of its equitable powers, can, if necessary, compel a transfer to him of the security. See Mortgage Co. v. Fitzgerald (Minn.) 56 N. W. 464. The order sustaining the demurrer to the answer is affirmed.

GILFILLAN, C. J., absent on account of sickness; took no part.

KELLER v. SMITH et al. (Supreme Court of Minnesota. Nov. 28, 1894.) BAILEE-CONTRACT TO INSURE GOODS-ACTION FOR BREACH.

Evidence in this case held sufficient to Justify the verdict of the jury. (Syllabus by the Court.)

Appeal from district court, Ramsey county; Charles D. Kerr, Judge.

Action by J. S. Keller against J. Magill Smith and Herbert B. Farwell (impleaded with C. C. Madison), copartners as Smith & Farwell, to recover the value of furniture destroyed by fire while stored with defendants, in which there was a verdict for plaintiff. From an order denying their motion for a new trial, defendants appeal. Affirmed. Young & Lightner, for appellants. & Denegre, for respondent.

Horton

BUCK, J. This action is brought to recover the value of certain household furniture which plaintiff stored with the defendants, and he alleges that the defendants agreed to insure it for its full value, alleged to be the sum of $666, and the verdict of the jury was in favor of plaintiff for $450. The defendants deny that they agreed to insure the goods, and they were destroyed by fire while in the defendants' possession. The defendants were engaged in business as furniture and carpet dealers, and in their answer they "admit that on or about the first day of December, 1890, these defendants, for and in consideration of certain storage charges to be paid, received for storage from the plaintiff the goods, wares, and merchandise described in the complaint, and admit that thereafter, and on or about the 26th day of January, 1892, the plaintiff paid the de fendant the sum of thirteen dollars for storage of said merchandise, the same being in full for storage to that date." The defend. ants further allege in their answer "that, at the request of the plaintiff, these defendants on or about the 26th day of January, 1892, being then in possession of the personal property described in the complaint, and for his

convenience, retained the possession of said personal property, without charge for storage thereon, and as gratuitous bailees, and allege that thereafter, and while so rightfully in possession of said personal property, and on or about the 25th day of April, 1892, the same were, without fault of these defendants, totally destroyed by fire." Very much of the controversy arises over the last portion of the answer which we have quoted. The plaintiff claims, and so testified, that about the 1st day of December, 1890, he bought some of the furniture described in the complaint, of defendants, on the install ment plan, and made the final payment January 26, 1892, and up to that time left the furniture with defendants in storage, but that no terms were made about insurance; but that he stated to Mr. Farwell, one of the defendants, that he supposed that he ought to insure the furniture; and that Farwell told him it was entirely unnecessary; that it was covered under his policy. Plaintiff further testified that when he paid for the stor age he made an agreement with defendant Farwell to continue the insurance; that he suggested that perhaps he, plaintiff, had better insure the goods, but that Farwell said that he would keep them insured; that the furniture was covered under his policies; that plaintiff was already insured, and that he would continue the insurance. He further testified that at the same time he informed Farwell that the time for removing the goods was indefinite, and that he did not want to pay storage charges for any length of time; but Farwell said to him: "If you move them in sixty days, we will not charge you insurance for that time, nor for storage, nor for anything except packing." J. W. Owens, a witness for plaintiff, testified that he heard a conversation between plaintiff and Farwell in which plaintiff said, "Well, I guess the best thing I can do, not knowing when I want to ship this furniture, is to get it covered by a time policy"; and Mr. Farwell said, "Mr. Keller, it is not necessary for you to go to that expense at all, because my policy will cover these goods of yours"; and that "Mr. Farwell agreed with Mr. Keller to keep the goods for sixty days free of charge, in lieu of the $25 he was to pay him for packing the goods. That was settled upon then and there, that he was to pay him $25 for packing the goods, and in consideration of that he was to keep them sixty days for nothing. If they remained longer, Mr. Farwell was to pay storage, and It was to be paid when Keller got the goods." There was considerable more evidence of the character which we have quoted. Very much of this was denied by the defendants. It was all submitted to the jury for its consideration, and the jury found a verdict for plaintiff, as we have stated, for $450. The furniture was burned about one month after the expiration of the 60 days.

It is claimed by the appellants that, even

if there was such a contract for insurance as claimed by plaintiff, it was void for want of consideration. But we are of the opinion, taking the whole transaction, that there was sufficient consideration for defendants' promise to keep the furniture insured. If the goods remained longer than 60 days, the defendants were to charge for storage, and if they agreed to keep them insured, as part of that bargain, then there was a sufficient consideration which entered into the contract. The jury must necessarily have found that defendants agreed to keep the property insured, and whether it was intended by deferdants that their general insurance policy should cover the furniture, or whether they would be entitled to charge plaintiff with the additional costs of insurance, is im

material, so far as a consideration for the agreement is concerned. The agreement was for storage and insurance, made at the same time as part of an entire contract, and there is evidence to show that defendants were to charge plaintiff, and receive from. him, storage for the furniture during the time it was left with them after the expiration of the 60 days.

As to the fifth and sixth assignments of errors, the matter referred to was largely in the discretion of the trial court, with which we do not feel disposed to interfere. The order denying the motion for a new trial is affirmed.

GILFILLAN, C. J., absent on account of sickness; took no part.