They then returned and worked her father's farm on shares for 10 months. They left on account of some trouble, and in 1880 they again returned, and worked the farm upon shares for a year. They left again on account of trouble, but returned in the fall of 1886, and again took the farm on shares, continuing to work it in that manner until this deed was made. The farm was productive, and yielded sufficient to cover all the household expenses. Complainant and his wife lived with the Hansons, the Hansons receiving twothirds of the crops, and complainant onethird. Mrs. Hanson testifies that her father paid the taxes, clothed himself and his wife, paid the physician's bills, and the expenses of his wife's funeral, and paid one half the expense of living the first winter. After that they divided the entire products, first using, however, from the joint property what was necessary for the table. Upon the execution of the deed, Mrs. Hanson loaned $200 from the defendant Cook, and gave her a mortgage upon the land to secure it. Of this money $100 was paid to Adam, and Mrs. Hanson's husband used the balance for his own private purposes. Not long before this time complainant owned considerable personal property, which he had sold and converted into money. It appeared that complainant had disposed of all this money except $10. It will thus be seen that the relations which had existed between complainant and Mr. and Mrs. Hanson were based entirely upon contract. The record discloses no prejudice on the part of complainant against his other children. It does not appear that Mr. and Mrs. Hanson had rendered unrecompensed services to complainant, which would afford a reason for his deeding the greater part of his property to Mrs. Hanson. It is true that the deed provided that they should take care of him in the future. It was entirely competent for him to thus provide for his care, if he did it of his own free will, and was competent to understand the nature of the transaction. This transaction was regarded by the defendant Hanson and her husband in the nature of a contract, for she testified that she gave the mortgage to bind the bargain, and pay for the 30 acres, which 30 acres were worth from $400 to $600.

The court below did not pass, evidently, upon the question of undue influence. Undoubtedly the proper finding on this point in the case would be "not proven," though Mr. Hanson appears as the moving party whenever complainant proposed a deed of his property. The circumstances sur rounding the transaction are not such as to commend the conduct of Mr. and Mrs. Hanson to a court of equity. Her father was failing both physically and mentally. He was depressed by the loss of his wife, upon whose judgment and advice he had greatly relied during a married life of nearly 50 years. Common fairness would have dictated a consultation with her brothers and sisters. The undue haste with which Mr. and Mrs. Hanson at least permitted the transaction to be recorded is not com

who drew a deed similar to the one in controversy. Complainant's wife condemned the transaction, and refused to sign the deed, and nothing came of it. The attorney who drew the deed then notified the other children of this deed. The result of the case must, however, be determined by · the competency or incompetency of the complainant to make the deed. Fortyone witnesses were sworn, chiefly upon this point. Among them were several physicians, some of whom testified that they considered him competent to make the deed; others to the contrary. After a personal examination by the judge of probate, within a few weeks after the deed was made, that judge pronounced him incompetent. He was also produced as a witness in the circuit court upon this hearing, and the learned circuit judge came to the same conclusion. One who has made a personal examination in such cases is certainly more competent to judge than those who have not, and who besides have not seen any of the witnesses. It must certainly be a strong showing which would warrant us in setting aside the finding of two courts in such a matter. But upon the testimony of Dr. Pratt, the leading expert witness for the defendants, we find sufficient to sustain the decree. Dr. Pratt says, upon cross-examination, that he did not think complainant competent to make a sale of his land for money, and protect his interest in it. If he were not, then he was not competent to make the deed in question. Dr. Pratt further testified that, when he examined him privately, he did not know whether he had made to Mrs. Hanson a deed, a will, or a lease. The complainant, when upon the stand, testified that he supposed Mr. and Mrs. Hanson were still working the farm upon shares. It would be unprofitable to further discuss the facts to be elicited from a record of 727 pages. The finding of the court that complainant was of unsound mind, and mentally incompetent to execute the deed, is correct.

It only remains to determine the rights of Mrs. Cook upon her mortgage. The court below sustained the mortgage as to $100, because complainant had received the money. True, Mrs. Cook had no actual knowledge of the condition of complainant, but the money was loaned through her brother, who drew the deed, was present at its execution, and was her agent in the transaction. We think, under this record, that Mrs. Cook cannot be regarded as a bona fide mortgagee without notice, and that her mortgage lien cannot be sustained, except to the extent of the money received by complainant. The decree is affirmed, with costs to complainant against defendant Hanson. The other justices concurred.

FINLAYSON et al. v. CROOKS.

Minn.)

running into the city, desires to avail itself of the benefits afforded by the plaintiff's incorporation, and claims the right so to do. In this action it was decided, in the district court, that, in order that the defendant be entitled to such benefits, it must become the owner of a proper proportion (one-sixth) of the stock of the plaintiff corporation. Of the whole

amount of stock authorized, there was still unissued more than the amount required for this purpose, and the plaintiff was willing to sell such stock to the defendant at what the plaintiff deemed to be the actual value of it, (a price much above the par value,) and thereupon to admit the defendant to the enjoyment of the benefits desired by the latter; but the defendant contends that it should be allowed to purchase its proper proportion of the stock at its par value, without regard to the fact that the property held by and devoted to the use of the depot company may have greatly increased in value. The principal controversy on this appeal is whether the defendant should be required to pay more than the par value for the stock. In deciding this question, attention is directed to the peculiar nature and objects of the plaintiff's incorporation. We had occasion to consider this subject for another purpose in State v. Depot Co., 42 Minn. 142, 43 N. W. Rep. 840, and the opinion in that case so fully sets forth the character and objects of the corporation that we will avoid repetition by here referring to that statement. We are of the opinion that it was rightly decided that the defendant should only be required to pay the par value of the stock, which is all that any of the companies composing the corporation have heretofore paid for their stock therein. This conclusion is most consistent with the purposes and intention entering into the plan of incorporation, as shown in the articles adopted, and in the special law of 1879, (chapter 318,) which was accepted by the corporation, and became a part of the law of its existence. It seems apparent that the object sought to be accomplished was to bring all the railroads, whose lines of road should enter the city, into a legal acting, efficient combination, as a convenient and advantageous means of providing and maintaining suitable depot and terminal facilities, for the common use of all the roads, facilitating transfers from one line of road to another, and contributing to the convenience and advantage both of the railroad companies and of the public. The scheme contemplated the combination, not only of the railroads entering the city at the time the organization was effected, but of such as should come thereafter. It was doubtless considered that it would not only be advantageous for the new companies to enter the combination, but desirable on the part of the previous members that they should do so. For the most complete accomplishment of some, at least, of the obvious purposes contemplated, such a general combination was to be desired. Not only did the original articles of incorporation indicate that it was intended that the contemplated facilities should be "open alike to the use [un

647

der proper regulations] of all railroads now constructed, or which may be here. after constructed, to or into the said city;" but, by the special law above referred to, any such corporation was empowered to “subscribe to the capital stock of the said St. Paul Union Depot Company, or become a stockholder thereof;" and upon becoming the owner of such a number of shares of the stock "as shall be deemed equitable by the board of directors of the said St. Paul Depot Company, and upon executing an agreement to conform to its by laws and regulations, and to pay such charges as are required to be paid by the other railroad companies, any such company is declared to be entitled to elect or appoint one member of the board of directors. By section 4 it is declared: "There shall be no unjust discrimination against or in favor of any railroad corporation or railroad company using, or de siring to use, the said road, tracks, and union depot of the said the Saint Paul Union Depot Company, but the terms, conditions, and regulations adopted for the same shall be, as far as practicable, uniform, and apply alike to all railroads using, or desiring to use, the said road, tracks, and union depot of the said the St. Paul Union Depot Company.' As being significant of the intention that only the par value should be required to be paid by a railroad company entitled to acquire a membership in this corporation, it is to be noticed that, while it was obviously intended that, from time to time, subsequent to the corporate organization, other railroad companies were to become the owners of stock, and become members of this corporation, provision is made, as above indicated, for determining or apportioning the number of shares which any such railroad company should take, while no provision is made respecting the price to be paid therefor. Both the original articles of incorporation aud the amended articles, adopted in 1884, however, provide that the stock shall be divided into a specified number of shares, of $100 each. All this is naturally consistent with the theory that all the companies whose road■ enter the city should be permitted to take their proper proportion of the stock, as subscribers, at the value named in the articles of incorporation. Thus would the "conditions" under which different companies might be entitled to the benets to result from the combination be, “as far as practicable, uniform, and apply alike to all," as the special law requires. On the other hand, if effect be given to the claim of the plaintiff, and if its theory as to the increased value of the depot property, and hence of its stock, be correct, it might di rectly result in an inequality of burden between the corporations sharing alike in the benefits of the organization, which would be quite contrary to the provisions of the special law, and to the obvious purposes of the corporate organization. The five companies constituting the present membership paid for their stock at the par value of $100 per share; but it is demanded of this defendant that it pay for its proper proportion of the stock at the rate of $342.86 per share, amounting to

liability in separate actions, and a judgment in an action for the recovery of the money does not bar another action for damages for breach of the agreement to convey the land.

(Syllabus by the Court.)

Appeal from district court, Hennepin county; LOCHREN, Judge.

Action by Joseph W. Reynolds against Lisser Franklin, to recover damages for the breach of a contract. Judgment for plaintiff. Defendant appeals. Affirmed. Akers & Lancaster, for appellant. Robert D. Russell, for respondent.

DICKINSON, J. In May, 1885, these parties entered into a contract by the terms of which, for a specified consideration, the defendant undertook, among other things, to forth with pay to the plaintiff the sum of $200, in money or in goods, and, within 60 days after the making of the contract, to convey to the plaintiff certain real estate. The payment was not made, nor was the real estate conveyed. This action is for the recovery of damages for the breach of the agreement to convey the land.

1. The value of the land in question being in issue, the defendant made an offer to prove that he had authorized a certain real-estate broker to sell the land at five dollars an acre; that the broker adver. tised and offered it for sale at that price, without finding a purchaser; and "that one person in particular to whom it was offered for that price examined it and refused it." The first assignment of error is based on the rejection of the evidence thus offered. The ruling was right. Whether or not it would have been competent to prove generally that the defendant had exposed the land publicly for sale at the price named, but without success, that part of the offer which we have embraced in quotation marks was not admissible, and, as it was embraced in one entire offer, that alone justified the ruling of the court. That the land was offered to a particular person at a specified price, and that he, after examination, declined to purchase, would not go to justify the inference that the land was not worth more than the price named. Many considerations, aside from the value of the land, may be supposed to have affected the mind of the person referred to. It is not to be assumed as probable that every person to whom land may be offered at a reasonable price, or even at a price much less than its value, will purchase it; and the fact that a particular person refuses to purchase land proves nothing as to the reasonableness of the price for which it was offered.

2. Contemporaneously with the commencement of this action, the plaintiff commenced another action against the defendant to recover the $200 which was to have been paid as above stated, and that action proceeded to judgment in favor of the plaintiff. The question is presented whether such former recovery constitutes a bar in this action. We are of the opinion, as was the learned judge who tried the cause, that the principle of res judicata is not applicable, but that, from the nature of the agreement of the

parties, separate causes of action arose which might be enforced by separate actions. By the terms of the contract the defendant assumed obligations essentially distinct in their nature, and as to the time and mode of their performance. One obligation was to pay a specified sum at the time of making the contract; the other was to convey certain land at a future time. The remedies open to the plaintiff were different with respect to each of these subjects. For a default in the payment of the sum named he had his legal action for its recovery; and such an action might have been maintained at once upon default, although the time had not yet elapsed within which the defendant was required to convey the land. Upon default in respect to the latter obligation, the plaintiff might have prosecuted an action in the nature of a suit in equity for specific performance, or he might elect to prosecute a legal action for damages for the breach of the agreement to convey, as he has done. If an action for the recovery of the $200 had been commenced at once, and a recovery had upon the default of the defendant, it cannot well be urged that such a recovery would have barred an action for specific performance after the lapse of the time allowed for the conveyance of the real estate. It makes no essential difference that this action is for damages instead of for a specific performance, nor that both actions were commenced after both causes of action had accrued. The controlling fact is that, by the agreement of the parties, separate obligations were assumed, which, being broken, gave rise to distinct causes of action, and. even though they might have been joined in one action, separate actions may be maintained, and a judgment upon one of the causes of action does not constitute an adjudication upon the other. The case is not different from what it would have been if the defendant, for an entire consideration, had given to the plaintiff his several non-negotiable promissory notes payable at different times. Even after the maturity of all such notes, separate actions might be maintained, and a recovery upon one would constitute no bar to a recovery upon another. Order affirmed.

BAKER V. WYMAN et al. (Supreme Court of Minnesota. Aug. 24, 1891.) INSOLVENCY-RECEIVERS.

1. Finding of the court held sustained by evidence going to show that a creditor of an insolvent debtor did not have reason to believe the debtor insolvent when he received payment of his debt.

2. An order appointing a receiver of an insolvent debtor upon the petition of creditors, alleging that the debtor had preferred creditors, does not constitute an adjudication of the point as to whether the alleged preferential payment is voidable.

(Syllabus by the Court.)

Appeal from district court, Hennepin county; YOUNG, Judge.

Action by Charles A. Baker, as receiver of an insolvent debtor, against Oliver S. Wyman and another, to recover money