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was permitted to collect a portion of the rents, and possibly some amounts due upon contracts.
We are unable to find that anything was paid to Lewis upon the mortgage after the trust deed was made, and, if it could otherwise be claimed that the trust deed operated as an assignment of the mortgage to the complainant's agent, it is not clear that it had not been previously paid to Lewis. Nor is there any proof that Balen ever heard of the mortgage. The record does not warrant us in saying that rents received by Mr. Lewis were not applied in accordance with the trust deed, and we find no evidence showing how much, if any, collected by Lewis was not paid over. Neither does it appear how much, if any, was collected by the family after Lewis' death, nor how much has been uncollected, if any. We must assume that the amount reported due upon the mortgage is correct, and feel constrained to hold that lot 8 should not be discharged from the mortgage. It should be the last parcel to be 672 sold, however. The decree will be modified in this particular, and complainant will recover costs of this court against defendant Chateauneuf.
PEMBERTON v. DEAN.
[88 Minn. 60, 92 N. W. 478.]
Moore, Grant, and Montgomery, JJ., concurred.
A Partial Release of a Mortgage may be made; and, when made, it affects only the property therein described: Woodward v. Brown, 119 Cal. 283, 63 Am. St. Rep. 108, 51 Pac. 2, 542. But if a mortgages releases part of the premises after parts have been sold, having notice of the prior sale, he thereby releases the property first sold, if the property actually released by him is of sufficient value to pay the mortgage debt: Turner v. Flenniken, 164 Pa. St. 469, 44 Am. St. Rep. 624, 30 Atl. 486.
Record as Notice.-One holding a mortgage on real property is not affected by subsequently recorded conveyances of parts thereof of which he had no actual notice: Woodward v. Brown, 119 Cal. 283, 63 Am. St. Rep. 108, 51 Pac. 2, 542.
1. Barton and J. E. Samuelson, for the appellant.
" The facts are as follows: At the time stated in the com-
, and for a number of years prior thereto, plaintiff was,
12, ke purchased of defendants such a wheel, and removed it
PEMBERTON v. DEAN.
[88 Minn. 60, 92 N. W. 478.] SALES_-Warranty.-A manufacturer's printed warranty remaining pasted on an article when sold by a dealer, who has purchased from such manufacturer and sold to a third person without any express representation or warranty does not bind such dealer. (p. 505.)
H. Barton and J. E. Samuelson, for the appellant. Stringer & Seymour, for the respondents. 61 BROWN, J. Action to recover damages for the breach of a warranty alleged to have been given on the sale by defendants to plaintiff of a certain emery wheel. The court below dismissed the action at the trial, and plaintiff appealed from an order denying a new trial.
The facts are as follows: At the time stated in the complaint, and for a number of years prior thereto, plaintiff was, and had been, engaged in the business of blacksmithing, in and about which business it was necessary to make use of an emery wheel for the purpose of sharpening tools. On October 1, 1901, he purchased of defendants such a wheel, and removed it to his place of business, and there made use of it. About October 30th of the same year, when engaged in operating the wheel in sharpening tools, the same broke, and a piece therefrom struck plaintiff and severely injured his person. The complaint alleges that defendants represented and warranted, at the time of the sale of the wheel, that the same was well
2. Tas est noticed by either at the time of the sale. Clearly,
rech circumstances, the placard cannot be held to be varaty of defendants, and to hold that they adopted the pretations purporting to be thus made would be going far
z any case to which our attention has been called Tratar the manufacturers would be liable to plaintiff upon
sa verranty, either upon the ground of neglect in the manu. stane vă the wheel or for a breach of warranty, is wholly irsenet to the question. If it be granted that the manubarers would not be liable, it by no means follows that de
plan are. We are clear that the mere sale of the wheel by vedants with the printed matter pasted thereon, without 22xt or ceremony, did not amount to an express warranty ten part
. The allegations of the complaint are not, theresa stained by the evidence, and the court correctly disend the action. Neither can plaintiff recover upon the and an implied warranty. It may be, and doubtless is,
sat there is an implied warranty in all cases where an
made, of good material, and capable of making eighteen hundred revolutions per minute; and that plaintiff relied upon such representations and warranty in making the purchase. This action was brought for damages, on the theory that the injury to plaintiff was the direct result of a defect in the wheel, and that defendants were liable as for a breach of the alleged warranty.
The only question we deem necessary to consider is whether the evidence establishes the allegations of the complaint that defendants warranted the wheel at the time of the sale. It was not manufactured by defendants, who were wholesale and retail dealers in heavy hardware, and kept wheels of the kind in stock for sale to the trade; but was manufactured by the Northampton Emery Wheel Company, of Massachusetts, from which company defendants purchased it, with others, in the usual course of trade. A printed card was placed by the manufacturers upon the face of the wheel, which contained the words "Northampton Emery Wheel Co.,” the word "Speed," and opposite thereto the figures "1,800," indicating, as claimed by plaintiff, that the wheel was capable of being safely operated at the rate of eighteen hundred revolutions per minute. There were other words upon the card, together with the word “Warranted.” This card was upon the wheel at the time it was purchased by plaintiff, and the contention of plaintiff is that the same constituted and amounted to a warranty on the part of defendants in respect to its quality and speed capacity; that, although it may have been placed upon the wheel by the manufacturers, 63 defendants adopted it as their own by making the sale without removing it therefrom.
Conceding that the printed matter upon the face of the wheel was sufficient to constitute a warranty, we are unable to concur in the contention that it was the warranty of defendants. A warranty consists in representations and statements of and concerning the condition and quality of personal property, the subject of sale, made by the person making the sale to induce and bring it about. So far as the evidence in the case at bar shows, nothing whatever was said between the plaintiff and defendants concerning the condition or quality of this wheel, whether it was capable of making eighteen hundred revolutions per minute or any other number of revolutions, or as to whether it was fit and suitable for any particular purpose. Attention was not called by either party to the alleged printed warranty, and for aught that appears from the record, the
tee is manufactured and sold for a specific purpose that such he's fit and suitable for the purposes intended for it. But * The can have no application to the case at bar, for plainA vis in his complaint, not 64 upon an implied, but upon Tempras marranty; and, besides, defendants were not the beradacturers of the wheel. De order appealed from is affirmed.
Teplied Warranties of soundness in sales are discussed in the monoprie note to Emerson P. Bringham, 6 Am. Dec. 113-119. Ordi. post
, 20 warranty of soundness is implied: Court v. Snyder, 2 Ind. 19,40, 80 Am. St. Rep. 247, 23 N. E. 718. Compare Bulwinkle 1. Cramer
, 27 8. C. 376, 13 Am. St. Rep. 645, 3 8. E. 776.
same was not noticed by either at the time of the sale. Clearly, under such circumstances, the placard cannot be held to be the warranty of defendants, and to hold that they adopted the representations purporting to be thus made would be going far beyond any case to which our attention has been called Whether the manufacturers would be liable to plaintiff upon this warranty, either upon the ground of neglect in the manufacture of the wheel or for a breach of warranty, is wholly irrelevant to the question. If it be granted that the manufacturers would not be liable, it by no means follows that dem fendants are. We are clear that the mere sale of the wheel by defendants with the printed matter pasted thereon, without other act or ceremony, did not amount to an express warranty on their part. The allegations of the complaint are not, therefore, sustained by the evidence, and the court correctly dismissed the action. Neither can plaintiff recover upon the theory of an implied warranty. It may be, and doubtless is, true that there is an implied warranty in all cases where an article is manufactured and sold for a specific purpose that such article is fit and suitable for the purposes intended for it. But that rule can have no application to the case at bar, for plaintiff relies in his complaint, not 4 upon an implied, but upon an express warranty; and, besides, defendants were not the manufacturers of the wheel.
The order appealed from is affirmed.
Implied Warranties of soundness in sales are discussed in the monographic pote to Emerson v. Bringham, 6 Am. Dec. 113-119. Ordinarily, no warranty of soundness is implied: Court v. Snyder, 2 Ind. App. 440, 50 Am. St. Rep. 247, 23 N. E. 718. Compare Bulwinkle v. Cramer, 27 8. C. 376, 13 Am. St. Rep. 645, 3 S. E. 776.
STONE V. BEVANS.
(88 Minn. 127, 92 N. W. 520.) MUNICIPAL CORPORATIONS_Void Contract. -A contract entered into by the common council of a municipality concerning & municipal matter for the benefit of one of the members of such council is void. (p. 508.)
MUNICIPAL CORPORATIONS-Contract of Officer with Rae covery of Payments.-If a void contract is entered into between & municipal council and one of its members under which the latter has received money, it may be recovered for the municipality in a suit by a taxpayer thereof. (p. 508.)
special with the waterworks. In consideration of such as
s by the president of the council, and in order to secure Kve services until the completion of the enterprise, the mai
, at a meeting held August 30, 1891, adopted a resolua usprating to him the sum of fifty dollars per month na July 1st
, previous to January 1st following. At such
Sweding to ome view of the complaint, it would seem as if
acy zember of the council from receiving more than three
Cliff & Purcell, for the appellant.
R. A. Stone, pro se.
127 LOVELY, J. Plaintiff brings this action, as a tax. payer of the village of Morris, for himself and others similarly interested, to recover money wrongfully voted by the village council to one of its members. The cause was tried to the court, who found that the allegations of the complaint were true; also, that the defensive matters set forth in the answer were not established; and as a conclusion of law held that judgment should be entered against defendant Bevans for the amount claimed by plaintiff in behalf of the village. Upon & settled case containing the evidence the defendants moved for a new trial, which was denied. From this order they appeal.
It is provided in the organic act of the village of Morris that its governing body shall be a president and four councilors who 128 “shall constitute the common council of the village,
a majority of whom shall constitute a quorum for the transaction of business”: Spec. Laws 1881, c. 30, sec. 4.
Such council is clothed with the usual powers given to the legislative bodies of municipalities in this state, and could incur an indebtedness for a water plant and extension.
Defendant Bevans was president of the council. The other four defendants were the members thereof. In 1891 an extension to the waterworks system of the village was contracted for by the council. New mains were to be laid and bonds issued to pay therefor. The president manifested considerable interest in the matter, and aided in superintending the work. He also visited Dubuque, Iowa, with reference to a suit brought by parties in that city against the village, growing out of matters
in 1861, 6, 30.
, to enter into a contract with the village, which
Tal comart in the exclusion of testimony tending to show
, and could confer no rights apon a member of the coun-