Lambert, which have not already been allowed, then I am empowered to take the amount out of the above two hundred and ninety dollars. J. E. THWING. It is impossible to understand this as any. thing other than a settlement of all claims and demands on either side growing out of the building contract, except such claims against plaintiff as might afterwards be presented to and paid by Mary A. It being an account stated, evidence on the part of the defendants to show there was less due was inadmissible, there heing no facts pleaded by them to impeach it. Order affirmed. PAYNE V. PAYNE. (Supreme Court of Minnesota. July 1, 1891.) DIVORCE-IMPOTENCY-FINDINGS. 1. The term "impotency" defined. 2. A finding that the defendant is impotent implies and includes every essential element constituting impotency, within the meaning of the law of divorce. (Syllabus by the Court.) Appeal from district court, Hennepin county; HOOKER, Judge. E. C. Gale and Ferguson & Kneeland, for appellant. E. A. Sumner, for respondent. MITCHELL, J. The statute does not define the term "impotency," but in the law of divorce it means want of potentia copulandi, and not merely incapacity for pro- | creation. It is an incapacity that admits neither copulation nor procreation. And what the law refers to is capacity for copula vera, and not partial and imperfect or unnatural copulation. The incapacity must also be incurable. 1 Bish. Mar. & Div. § 765 et seq.; D-e v. A―g, 1 Rob. Ecc. 279. The nature of the case forbids a discussion of the evidence, but in our opinion it fully justified a finding that the defendant was "impotent" in the legal sense of the term. The court finds that she "was at the time of her marriage, and ever since has been, and is still, impotent." This is a complete and sufficient finding upon the only issue in the case; for the word "impotent" implies and includes every element essential as a ground of divorce. The learned judge, however, instead of limiting his findings to this one ultimate issuable fact, has, in accordance with an unfortunately common practice, incorporated into them a statement of the evidence and his conclusions on numerous mere evidentiary facts, in which, after describing defendant's natural defects, the efforts by surgical operations to remedy these defects, and the failure of such efforts, adds: "We are unable to find that the defendant's condition could be materially bettered by further surgical operations. She appears to have consulted noted surgeons, and was for a long time treated by Dr. Phillips, and after continued operations we find her in the condition above stated at the time of her marriage. It is contended that this amounts to an express special finding that he was unable to decide whether defendant's impotency was curable or not. We do not think that it fairly admits of this construction. What we think the judge meant was that, in view of the serious character of defendant's natural deformity, and the failure of previous skilled operations to remedy it, he was of opinion that any future operations would be equally unsuccessful; which was but a mild way of saying that the defect was incurable. Order affirmed. LAMBERTON V. BOGART. (Supreme Court of Minnesota. July 1, 1891.) INSURANCE-ENDOWMENT POLICY-BENEFICIARIES. The terms of an endowment policy of life insurance construed, and held that, in case of the death of the insured before the maturity of the policy, the sum assured was payable to his wife only in case she survived him; otherwise to his personal representatives or assigns. (Syllabus by the Court.) Appeal from district court, Winona county; START, Judge. James A. Tawney and H. H. Lamberton, for appellant. Keyes & Brown, for respondent. MITCHELL, J. In January, 1867, the Connecticut Mutual Life Insurance Company executed and delivered to George H. Elmer a policy of insurance upon his life, for the sum of $1,200, payable on the 28th day of February, 1892, when the said Elmer should have attained the age of 55 years, or in 90 days after due notice and proof of his death, should he die before attaining to that age. In and by this policy the company "promised and agreed to and with the said assured well and truly to pay, or cause to be paid, the said sum assured at the date aforesaid, or to his executors, administrators, or assigns, in ninety days after satisfactory proof of the death of said Geo. H. Elmer, if death occurs prior to his attaining the age of fiftyfive years. In case of the death of said George H. Elmer before attaining the age of fifty-five years, this policy shall be payable to Anna Elmer, wife of said Geo. H. Elmer. That part of the foregoing which is italicized was inserted in writing, while the remainder was in the printed provisions of the policy. Elmer paid the annual premiums on the policy up to the time of his death. In February, 1889, Mrs. Elmer died intestate, leaving surviving her husband and their four children, two of whom were in being when the policy was issued, the other two having been born afterwards. After the death of his wife, Elmer assigned the policy to the plaintiff, and subsequently died before attaining the age of 55 years. The question is, which of the parties is entitled to the proceeds of the policy,-the plaintiff, as assignee of the husband, or the defendant, as administrator of the wife. This is purely a question of construction of the terms of the policy itself. Defendant's contention is that, the written portion of the policy being inconsistent with the printed portion, the former must prevail; that by it the wife is made the sole beneficiary of the policy in case the husband died before reaching the age of 55 years; and that as a policy, and the money to become due un der it, belong, the moment it is issued, to the person named in it as beneficiary, the person who procured the insurance has no power, by any act of his, to transfer them to any other person. If defendant's premises are correct, there can be no doubt that his conclusions are good law. But the questions are whether there is any necessary conflict between the printed and written provisions of this policy, and what was the nature and extent of the wife's interest in it. Was she or her estate the sole beneficiary in case the husband died before attaining the age of 55, or was her interest subject to the further contingency that she survived him. If any reasonable construction can be given to these two provisions of this policy, so as to reconcile them with each other, and give effect to both, it ought to be done, the same as if they were both written or both printed. It is an elementary rule of construction that every contract is to be construed with reference to its object, and the whole of its terms, even though the immediate object of inquiry is the meaning of a single clause. The sole purpose of construction is, if possible, to ascertain the intention of the parties. Now, here was a person taking out at his own expense an endowment policy on his own life, the primary object being his own benefit, to-wit, securing a fund payable to himself at a certain age. But, as he might not attain that age, the policy provides, in case of his death before that time, for the payment of the money to his personal representatives for the benefit of his estate. But, while this was his primary object, yet he also desired to make provision for his wife in case he died before the maturity of the policy. Hence, leav. ing the previous provisions of the policy unchanged, he causes this written one to be added. Manifestly what he had in mind was not a provision for the benefit of his wife's estate or her heirs or assigns, but protection for the wife herself, in case she survived him. Had he also had in mind protection for his children, the easiest and most natural thing in the world to have done would have been to expressly provide that the policy should be payable to them in case of the death of both himself and his wife. These provisions in policies of life insurance, designating beneficiaries to whom the money shall be paid upon the death of the insured, are somewhat of the nature of testamentary dispositions, and their language is to be read and interpreted in very much the same way. Now, while it is true that, if the wife was the sole beneficiary of the policy, the proceeds would, in case of her death, go to her executors, administrators, or assigns without any such words in the policy, yet, as bearing upon the question of intention, it is a significant fact that no such words were inserted in the written provision, although they appeared in the preceding printed portion of the policy. This is strongly suggestive of an intention that the written provision should be for the sole benefit of the wife personally. Again, had it been intended that the wife or her estate should be the sole beneficiary in case of the death of the insured before the age of 55 years, the most natural thing would have been to erase the preceding printed provision as to payment to his executors, etc.; for, in such case, that provision would be wholly inoperative. Neither can we see the force of the suggestion that, by appointing his wife absolutely the sole beneficiary, the insured would be making provision for his children as well as his wife. If she survived him, that object might be accomplished by having the money go to her, for she would then be the head of the family, and the natural protector of the children. But, when both husband and wife are dead, it is difficult to see how the child ren would be better protected by having the money go the wife's estate rather than to that of the husband. Of course, a combination of circumstances might occur where this might be so, as, for example, if the wife died solvent, and the husband insolvent, and the sole and common heirs of both were their children. But this was too remote and conjectural to warrant the assumption that it was present in the mind of the insured when taking out the policy. On the other hand, other combinations of circunstances, equally likely to occur, might be supposed where such a provision would deprive the family of the insured of all benefit of the policy, as, for example, the death of the two chil dren, and then of Mrs. Elmer, soon after the policy was issued, a second marriage by Elmer, and his death before the age of 55 leaving children by his second marriage. It seems to us that what the insured had · in mind, and what he intended by the written portion of this policy, was to provide protection for his wife, in case she survived him, and nothing more. Thus construed, the meaning of the policy would be that, in case of the death of the insured before its maturity, the money should be paid to his personal representatives or assigns, provided, however, if his wife was then living, it should be paid to her. This construction would give effect to both the printed and the written portions of the policy, for it would make the latter in the nature of an exception to the former, leaving the printed provision in force, except in case of the happening of the contingency constituting the excep tion. While it is with some diffidence that we reach a conclusion different from that arrived at by the able judge who tried the case, yet, taking into consideration all the terms of this policy, its object and subject-matter, we think that the construction we have adopted is in accordance with the intention of the parties at the time the policy was issued. It is urged that, as the record does not purport to contain all the evidence, we must assume that there was sufficient to support the finding of the court that the insurance company “promised and agreed to pay to Anna Elmer the amount of the policy in case of the death of her husband before attaining the age of fifty-five years." But the findings show that this is merely the court's construction of the language of the policy. The language of the finding is that the insurance company promised and agreed “in and by said policy," which is set up in the complaint, and admitted in the answer. As said at the outset, the sole question is one of the construction of the terms of the policy itself. Judgment reversed, and cause remanded, with direction to the trial court, upon its findings of fact, to order judgment for the plaintiff. GATES V. NATIONAL BUILDING, LOAN & OF AGENT. A contract by which plaintiff agreed to act as defendant's agent for the sale of "shares of its stock," construed to refer to the form or kind of stock which the defendant was issuing at the time the contract was executed. (Syllabus by the Court.) Appeal from district court, Hennepin County; SMITH, Judge. Keith, Evans, Thompson & Fairchild and George D. Emery, for appellant. Hart & Brewer, for respondent. tract, secured a profitable business in the sale of shares. It also alleges that the contract between plaintiff and defendant was entered into solely with reference to procuring contracts of membership of the kind above described, and that none other were in the contemplation of the parties at that time. The complaint further alleges that, after the plaintiff had worked about eight months under this contract, the defendant "refused to receive any new members, or to issue any new stock, or to allow him to solicit new members or sell new shares, except upon an entirely new and radically different plan and contract from that with reference to which the agency contract was made, and from all prior membership contracts authorized or made by the defendant;" that by the new plan the defendant proposed to issue "non-forfeitable" stock, by which it only proposed to return to the investor $100 at the end of six and a half years, upon an investment of $68.30; that this new form of stock was practically unsalable in the state of Ohio, so that plaintiff's business was entirely broken up and necessarily discontinued. The question presented by the demurrer to the complaint is whether this change in the form and character of the stock constituted a breach of the agency contract. The contention of the defendant is that, as the agency created was to solicit and receive applications for "shares of stock," no particular kind of stock be MITCHELL., J. By the contract set out in the complaint, the defendant appointed the plaintiff "its special and controlling agent for five years for the state of Ohio, for the purpose and with the authority to solicit and receive applications for the shares of stock of the association, and to receive membership fees therefor, and to appoint subagents in that state for these purposes, and with authority to soliciting specified, it was not restricted to the and receive applications for membership shares and admission fees." The plaintiff was also to organize local advisory boards, and to perform such other services in that state as the defendant might require of him. He was to give his whole time, energies, and exclusive attention to the business of the defendant, excepting two months' vacation in each year. He was also responsible for all membership fees upon applications for shares received by him or his subagents. His sole compensation was to be, not a fixed salary, but $1.70 out of each membership fee collected by himself or his subagents, which was to cover not only his and their services, but also all expenses incident to the establishment and prosecution of the business within the prescribed territory. He was also bound, during the entire duration of the contract, to procure to be taken at least 500 shares per month, and to account to the defendant for 30 cents per share on all shares sold. The complaint alleges that the contracts of membership uniformly made by defendant with its shareholders prior to and at the time of the execution of this agency contract were in the nature of tontine investments, in which strict forfeiture was the result of non-payment of installments by the investor, and by which the association, in reliance upon the large share of forfeitures, undertook for an entire aggregate payment of $46, extending through a period of five years, to repay the investor $100 at the end of that period; that this form of investment was very popular and salable in the state of Ohio, where plaintiff, during the time he worked under the con particular kind of stock that it was issu. ing at the time the contract was made, but was at liberty to change the form of its shares and membership contracts from time to time as it deemed expedient. Had the constitution of the defendant, at the time this contract was executed, expressly authorized and provided for the issuing of both kinds of stock, we think it might be fairly held that the parties contracted with reference to the issue of either, although only the tontine or forfeiture kind had been actually issued up to that time. But we think the fair construction of the complaint is that the "tontine" or "forfeitable" stock was not only the only kind actually issued, but the only kind which the association had authority to issue, at the time of the execution of this contract; or, if this is construing its allegations too strongly in favor of the pleader, it at least means that the association had adopted this as the form of their stock, and that it was the only kind the issue of which it had authorized or provided for at that time, although the articles of association, silent as to the form of stock, might have been sufficient, without amendment, to authorize the association to adopt any form of stock it saw fit. But under either state of facts we think that under the circumstances, and especially in view of the peculiar provisions of this contract, the parties must be deemed to have contracted with reference to substantially the kind of stock which the defendant had adopted and was issuing at that time, and that they did not have in contemplation so radical a change in the manuer of doing business as to virtually change the entire subject of plaintiff's agency. In view of the provisions of the contract already referred to, it is not to be supposed that any man capable of understanding their effect would assume such obligations without such knowledge of the stock he was to sell as would enable him to judge of the probable success of the enterprise. Not only was his compensation and his reimbursement for expenses dependent on the sales he could make, but he absolutely bound himself to sell 500 shares per month for the entire five years, and account to the defendant for 30 cents per share. Under the construction placed upon the contract by defendant, the change in the character of its stock would not only deprive the plaintiff of all compensation, but also render him liable for $150 per month damages for the whole of the remainder of the five years. Defendant's counsel, seeing the force of this, attempted to argue that a substantial change in the form of stock, although constituting no breach of the contract, would relieve the plaintiff from liability on his covenant to sell 500 shares per month. Such a position is entirely illogical, for nothing can relieve one party from the performance of his contract but the breach of it by the other party. Or- | der affirmed. ARMSTRONG et al. v. ST. PAUL & P. COAL & IRON CO.1 (Supreme Court of Minnesota. July 1, 1891.) PRINCIPAL AND AGENT-SALE-ACTION FOR LOSS OF PROFITS. 1. Held that, under the facts of this case, the parties did not occupy the relation of principal and agent, but of opposing contracting parties, as purchaser and seller. 2. Where the purchaser notifies the seller that he will not pay the contract price for the property if delivered, but only a less price, it amounts to a repudiation of the contract, and absolves the seller from the duty of delivering the property; and he may have his action for the loss of profits on the sale. (Syllabus by the Court.) Appeal from district court, Ramsey County; WILKIN, Judge. Hart & Brewer, for appellants. J. B. & W. H. Sanborn, for respondent. Mitchell, J. The records and briefs were suggestive that this case might be a complicated one, but examination proves that the material facts are few and practically undisputed, and that the legal questions involved are very simple. In June, 1885, Armstrong & Truesdell, (now Armstrong & Co., plaintiff Mather having succeeded Truesdell,) local coal dealers in Minneapolis, agreed to buy of defendant 10,000 tons of anthracite coal, at the price of $6.80 per ton for nut and stove, and $6.55 for egg and grate, to be received and paid for during the time intervening between the date of the contract and May 1, 1886. This contract remained unmodified until August 7. 1885. By that time the market in Minneapolis had become quite demoralized by strong competition be. tween rival coal companies, and consequently it became to the mutual interest 1Rehearing granted. of both parties that the defendant should nake some concessions to its customers to enable them to stay in the market and meet the cut prices. In this situation of affairs, Truesdell went to Chicago, and had a conference with the general manager and vice-president of the defendant company. It was there agreed that Armstrong & Truesdell might sell coal for actual consumption, for cash and immediate delivery, at $6.50 and $6.75, and make daily reports of what they sold, until notified to stop, and that defendant would furnish them the coal so sold and reported at 75 cents a ton less than the prices so made. There is no controversy over this, as defendant admits and has always recognized this modification of the contract. Truesdell thereupon wired instructions to this effect to his firm in Minneapolis, which is the first of the telegrams which appear in the record. Subsequently, and on the same day, defendant's agents further agreed with Truesdell that whatever coal Armstrong & Truesdell should sell and deliver the next day (which could not and should not exceed 200 tons) it would deliver to them under the contract at $4 and $4.25 per ton. Truesdell thereupon wrote the following telegrams in succession, and handed them to defendant's agents, who, after reading them, directed their office boy to take them to the telegraph office for transmission: "To Armstrong & Truesdell: Advertise in to-night and to-morrow's papers, for cash and immediate delivery to actual consumers only, coal at $4.75 and $5.00. Take as few orders as possible; then stop and wait for orders. [Signed] V. TRUESDELL. Also: "At the five-dollar price do not let opposition place any orders with you; know where coal is going; close taking orders after to-morrow; let me know what is going to-day. [Signed] V. Truesdell. Also: "Do not take any more orders for coal at the five-dollar price than what you can fill to-morrow; guaranty nothing; we start back to-night. [Signed] V. TRUESDELL." All of these telegrams were received by Armstrong-the member of the firm who was attending to the business at home-during the afternoon of the same day, (August 7th.) He proceeded in accordance with his understanding of the meaning of those instructions, and the next day took orders for 4,300 tons at the $4.75 and $5 rates. Right here is where the controversy between the parties arose; the plaintiff claiming that defendant was bound to furnish them the whole of this 4,300 tons at the $4 and $4.25 rates, while defendant's contention is that it was only bound to furnish 200 tons at those prices. Plaintiff's argument is that the relation of principal and agent existed between them and the defendants, they being its agents for the sale of this coal, and consequently that defendant is responsible for these telegrams, which they claim are ambiguous on their face, and do not limit the sales on the next day to 200 tons, or what Armstrong & Truesdell could actually deliver on that day; that it is the duty of the principal to make his instructions free from ambiguity. The trouble with this argument is what had occurred previously on the trial, but, in view of all that had happened, it would have been almost an abuse of discretion to have allowed these amendments at the very close of the trial. Moreover, the amended reply set up no defense to the counter-claim, and some portions of it were wholly inconsistent with the allegations of the complaint. Order affirmed. WINSLOW BROS. Co. v. Herzog Manuf’g Co. (Supreme Court of Minnesota. July 1, 1891.) CONTRACTS-PAROL EVIDENCE-HARMLESS ERROR. 1. Held, that certain testimony should have been excluded or stricken out as being parol, contemporaneous evidence, varying a written contract. 2. Also that, the plaintiff being entitled to have a verdict in his favor directed by the court, the errors assigned by the defendant were without prejudice. (Syllabus by the Court.) that the premise upon which it rests is This brings us to the question of the correctness of the action of the court in directing a verdict for defendant upon its counter-claim for damages, by the refusal of plaintiffs to receive and pay for the balance of the 10,000 tons under their contract of June 26th. No question is made here as to the amount of the verdict. The evidence is conclusive that the defendant kept the coal on hand, and was ready and willing to deliver it at the prices named in the contract of June 26th, and requested plaintiffs to receive it under that contract, but that they claimed they were entitled to it for $4 and $4.25, and notified defendant, in effect, that, if the coal was delivered, they would pay no more for it unless at the end of a lawsuit. This conduct on part of the plaintiffs amounted to a repudiation of the contract, and absolved the defendant from the duty of delivering the balance of the coal, and gave it a right of action for its loss of profit on the sale. Benj. Sales, 558, note 9. There was certainly no error in the court's refusing to permit plaintiffs to introduce their amended reply. We do not feel called on to go into the history of Appeal from district court, Hennepin county; HOOKER, Judge. James A. Kellogg, for appellant. Spoon MITCHELL, J. The defendant, having a contract to furnish the elevator front, sides, and railing for the Masonic Temple, in Minneapolis, and desiring to sublet the work, sent to plaintiff the plan and elevation of the same, and requested it to make a bid for the work complete, to the satisfaction of the architect. Accompanying the plan and elevation, defendant sent measurements, purporting to show the quantity of the work required, but expressly stated that, as these measurements were taken from the plans of the building, they were not exact, and that the parties who did the work would be required to take their own measurements. This amounted to express notice that the bid was to be made and the work done according to the plan and elevation, and that, while these approximate estimates or measurements of the amount of the work were sent along for such use as bidders might see fit to make of them, yet they must verify them for themselves from the building. Railway Co. v. Bradbury, 42 Minn. 222, 44 N. W. Rep. 1. The plaintiff, in response to this invitation, sent to defendant a written proposal, offering to do the work for the round sum of $2,040. The representative of the defendant thereupon went to Chicago, taking this proposal with him; and, upon a personal interview with the representative of the plaintiff, closed the contract by a written acceptance of plaintiff's bid. This action having been brought to recover the balance due on the contract price, and also a small bill for extra work, the defendant interposed (1) a counter-claim, and (2) a partial defense. The jury found against the defendant on both, and rendered a verdict in favor of the plaintiff for the full amount claimed in the complaint. Nothing need be said regarding the counterclaim. The evidence abundantly justified the verdict in that regard, and none of defendant's assignments of error bearing |