State Bank of Maxbass v. Hurley Farmers'

State Bank of Maxbass v. John D. Gruber
Co. (N. D.)...

State Bank of Woolstock v. Schutt (Iowa)

(Wis.) 971

Stoner-McCray System v. Manhattan Oil
Co. (Iowa).

Sult, Tolerton & Warfield Co. v. (N. D.)..

Swigart, Buffalo Center Land & Invest

Szelwicki v. Connor Lumber & Land Co. (Wis.)

Tietge, Buck Auto Carriage & Implement
Co. v. (Iowa).

Tolerton & Warfield Co. v. Sult (N. D.)..
Toombs, City of Bloomfield v. (Iowa).... 307
Torgeson, Detroit Automatic Scale Co. v.
(S. D.)...

Town of Pewaukee, Meidenbauer v. (Wis.) 144
Township of Bergen v. Nelson County (N.
D.)...

Township of Warsaw v. Bakken (Minn.)
Townsley, Scott County v. (Iowa)...

Travelers' Ins. Co. of Hartford, Conn.,

REHEARINGS DENIED

[Cases in which rehearings have been denied, without the rendition of a written opinion, since the publication of the original opinions in previous volumes of this Reporter.]

IOWA.

| Northwestern Fuel Co. v. Leipus, 152 N. W. 856.

Barber v. De Ford, 150 N. W. 86.

Parkes v. Lindenmann, 151 N. W. 787.

Ludowici Caladon Co. v. Independent School Sterling Engineering & Construction Co. v. Dist. of Independence, 149 N. W. 845.

WISCONSIN.

Berg, 152 N. W. 851.

Taylor v. Northern Coal & Dock Co., 152 N.
W. 465.

Colburn v. Chicago & N. W. R. Co., 152 N. Todd v. Loomis, 152 N. W. 447.
W. 821.

Duluth St. R. Co. v. Railroad Commission of
Wisconsin, 152 N. W. 887.

Voelz v. Industrial Commission of Wisconsin, 152 N. W. 830.

W. H. Pipkorn Co. v. Tratnik, 152 N. W. 141.

See End of Index for Tables of Northwestern Cases in State Reports

(Supreme Court of Minnesota. Feb. 4, 1916.) to care for and bring up her child. The

(Syllabus by Editorial Staff.) HABEAS CORPUS 99-CUSTODY OF MINOR CHILD-RIGHT AS BETWEEN DIVORCED PAR

ENTS.

In a controversy between divorced parents as to the right of custody of a child five years old, the welfare of the child is the primary consideration and requires that the care and custody be awarded to the mother, unless she is an unfit person to be charged with its bringing up. [Ed. Note.-For other cases, see Habeas Corpus, Cent. Dig. § 84; Dec. Dig. 99.]

Appeal from District Court, Hennepin County; W. E. Hale, Judge.

Habeas corpus by the State, on the relation of Niklas Galson, against Edna Galson, to secure possession of a child. From an order awarding the care and custody of the child to relator, defendant appeals. Reversed, and care and custody of child awarded to defendant.

C. H. Slack, of Minneapolis, for appellant. Booth & McDonald, of Minneapolis, for respondent.

PER CURIAM. The care and custody of the minor child of the parties was awarded by the district court to the relator after hearing on a writ of habeas corpus. Respondent, Edna Galson, appealed from the order. Additional testimony was taken be fore a referee and reported by him to this court, where the case was heard de novo.

Niklas Galson, a Greek, and Edna, his wife, the parents of the five year old girl whose custody is in controversy, ceased their marital relations, and a default decree of divorce was granted to the husband in June, 1913, which awarded him the care and custody of the child, which was at the time with its mother. Galson afterwards secured possession of the girl, and intrusted her to the care of one of his countrymen, from whom the mother took her.

It need not be stated that in these cases the first if not the only consideration is the welfare of the child. Plainly it should be with its mother, unless she is an unfit per

On

trial court decided that she was unfit, but
it did not have the benefit of the evidence
taken in this court before the referee.
the record as it stood when the trial court
filed its decision, we would not reach a con-
trary conclusion. But a careful considera-
tion of all the evidence convinces us that a
decision finding the mother unfit by reason
of her character and habits to have the care
and custody of her young daughter is not
demanded or even justified. The evidence is
of such a character that decency forbids
even a synopsis. Suffice it to say that we
find the accusations of the husband, support-
ed by the "dicers' oaths" of his countrymen,
to be false.

The order appealed from is reversed, and the care and custody of the child awarded to respondent, until the further order of this court.

BEHRENS v. KRUSE (three cases).
(No. 19509 [151].)

(Supreme Court of Minnesota. Feb. 2, 1916.)
(Syllabus by Editorial Staff.)
CoSTS 250 ALLOWANCE OF STATUTORY
COSTS-APPEAL.

Where three actions involving the same parties and the same questions of law are presented together on appeal, with one record, one brief, one oral argument, and one attorney on each side, only one allowance of statutory costs should be made.

[Ed. Note.-For other cases, see Costs, Cent. Dig. §§ 253, 956; Dec. Dig. 250.]

On motion to tax costs.

For former opinion, see 155 N. W. 1065.

PER CURIAM. Appeals in three actions between the same parties and involving identical questions of law were by stipulation presented together, with one record, one brief, one oral argument, and one attorney on each side.

Only one allowance of statutory costs should be made. So ordered. See Babcock v. Canadian Northern Ry. Co., 117 Minn. 434, 445, 136 N. W. 275, Ann. Cas. 1913D, 924.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 156 N.W.-1

BOWDER v. GILLIS et al. (No. 19380 [223].) (Supreme Court of Minnesota. Jan. 28, 1916.) (Syllabus by the Court.)

1. LANDLORD AND TENANT 76 - LEASE CONSENT TO ASSIGNMENT ACTION for DamAGES-SUFFICIENCY OF EVIDENCE.

the inside. He conducted a show therein for some 25 days, but in the early part of June closed up. He tried unsuccessfully to get from under the obligations of the lease. In the latter part of June he induced plaintiff to trade some land for the lease and outfitchairs, film machine, linoleum, and wall mirThe claim of plaintiff is that, prior to

In this action for damages against defend-rors. ants, as lessors, for refusing to give written con-making this trade, he consulted defendants sent to the assignment of the lease by the who agreed that he might procure the lease lessee to plaintiff, the jury were justified in finding that plaintiff procured the assignment of from Valentine, and that, in reliance upon the lease relying upon the assurance of the les- this assurance or agreement, he made the sors that such transfer would be acceptable to deal. After the lease was assigned, and on them. July 1, 1914, the defendants served a notice

[Ed. Note.-For other cases, see Landlord and

2. LANDLORD AND TENANT 1772-CONSTRUCTIVE EVICTION-RIGHT OF ACTION

Tenant, Cent. Dig. §§ 225-230; Dec. Dig. upon plaintiff calling his attention to their 76.] ownership and the Valentine lease, stating that they had been informed that plaintiff had taken possession, and notifying him that unless he had entered as agent or employé of Valentine his possession was unlawful and forbidden.

ASSIGNEE OF LEASE.

Plaintiff obtained the key to the leased premises and took possession as assignee of the lessee. He then had considerable bulky property in the leased building. He has never surrendered the key to the lessors nor removed his property from the building, and is therefore not in position to sue for constructive eviction; there having been no active interference by the lessors with his possession. There cannot be constructive eviction without a complete abandonment of possession by the tenant. [Ed. Note. For other cases, see Landlord and Tenant, Cent. Dig. § 712; Dec. Dig. 177.] Appeal from District Court, Waseca County; Arthur B. Childress, Judge.

Action by J. J. Bowder against W. H. Gillis and others. Verdict for plaintiff, and from denial of motion for judgment notwithstanding the verdict or new trial, defendants appeal. Reversed, and new trial granted.

Fred W. Senn and P. McGovern, both of Waseca, for appellants. Moonan & Moonan, of Waseca, for respondent.

HOLT, J. The action is one for damages against lessors for refusing to fulfill an agreement to give their written consent to a lessee's assignment of a lease. Verdict for plaintiff, and defendants appeal from the order denying their motion in the alternative for judgment notwithstanding the verdict or a new trial.

A day or so prior to receiving this notice plaintiff came to Waseca to open up the show. Defendant W. H. Gillis went with him to get the key to the premises that Valentine had left with a former employé. Gillis also rendered some assistance in getting the needed help for plaintiff. But when, later in the day, plaintiff requested the written consent of the lessors to the transfer of the lease it was refused. The lessors also refused to receive rent from plaintiff, but appear to have been willing to receive it as coming from Valentine. Their idea seems to have been to not release, from the covenants of the lease, Valentine, whom they regarded as financially responsible. Notwithstanding the notice, plaintiff gave exhibitions for three or four days thereafter, and then quit. Defendants did not interfere in any manner with plaintiff's possession or business, save the giving of said notice, the refusal to accept rent from him, and, late in the fall, when plaintiff was requested to remove his property and when the property was attached in a Plaintiff never surrendered suit for rent. the key and never removed his property, such as the 213 chairs, linoleum, and film machine from the premises.

We think the evidence justified the jury in concluding that, before the trade between plaintiff and Valentine was consummated, defendants indicated such assent thereto that plaintiff could rightfully rely thereon. It is probably true that the testimony does not show an express agreement to consent in writing to an assignment of the lease, but that was not necessary in order to give plaintiff the right to be regarded as assignee. The covenant was for the lessors' benefit, and could be waived by them. The jury were justified in finding a waiver as to plaintiff of the lessors' written consent to the transfer. Aldrich v. Shoe Mart Co., 108 Minn. 15, 121 N. W. 422.

[1] The short facts are these: On April 4, 1914, defendants by written lease demised the first floor and the front half of the basement of a certain two-story brick building in Waseca, Minn., to L. W. Valentine for a period of three years with privilege of two additional years, the rent being $60 per month. In the lease the lessee covenanted not to assign the lease or underlet the rented premises or any part thereof, without first obtaining the written consent of the lessors. A moving picture show had been operated in the premises, at short intervals, prior to the lease, and it was contemplated that the same business was to be continued therein. Mr. Valentine spent a considerable sum in changing [2] The doubtful question in the case is the street front of the premises, part of whether eviction has been proven. It is unwhich the lessors paid, and in decorating disputed that plaintiff obtained the key to

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes