C. A YOUNGMAN v. ANNA AHRENS.1 May 22, 1908. Nos. 15,664--(102). Appeal by plaintiff from a judgment of the district court for the county of Benton, entered pursuant to the order of Baxter, J., reversing the judgment of a justice of the peace for six cents and costs taxed at $38.23. Affirmed. W. F. Ewert, for appellant. J. D. Sullivan, for respondent. PER CURIAM. This case was commenced in justice court, where judgment was entered in favor of the plaintiff. The defendant appealed to the district court on questions of law alone, where the judgment of the justice was reversed and judgment entered for the defendant. From that judgment plaintiff appealed to this court. Plaintiff and defendant occupied adjoining lands. There being a dispute as to the proper boundary line, the plaintiff constructed the north half of a fence on the line claimed by him, and the defendant's husband constructed the south half of the fence on the line claimed by him. These two fences were joined together by the plaintiff with a small section of fence running east and west. The respective parties have occupied the adjoining lands since the year 1894, during which time the plaintiff has maintained the north end of the fence after a fashion, and the defendant's husband has kept the south end of the fence to suit himself. This arrangement was made between the parties, and the fences have been maintained in pursuance of an oral agreement. The defendant's cattle passed through the north fence onto the plaintiff's land and did some damage. The question is, whether the appellant, after having constructed the fence and agreed orally to maintain it, can recover damages occasioned by his failure to maintain the fence in proper condition. It is true, as appellant contends, that the statute provides for the construction and maintenance of a partition fence when the parties are unable to agree, and that this fence was not constructed and maintained in the manner provided by statute, but we agree with the learned trial court that the oral agreement between the parties for the construction and maintenance of a fence, after having been observed for about twelve years, cannot be disregarded by one party without notice to the other party, and an action for damages maintained on the theory that no partition fence exists. Order affirmed. 1 Reported in 116 N. W. 1135. JOHN L. ANDERSON v. JAMES H. STEWART and Another.1 May 22, 1908. Nos. 15,667-(142). Action in the municipal court of Minneapolis to recover $160 for services rendered as a real estate broker. The case was tried before Waite, J., who made findings and ordered judgment in favor of plaintiff for the amount demanded. From an order denying their motion for a new trial, defendants appealed. Affirmed. Ayers & McDonald, for appellants. Chas. E. Bond and J. LeRoy Smith, for respondent. PER CURIAM. The trial court found the following facts: Defendants, as agents for the sale of certain described lands, authorized and employed plaintiff to procure a purchaser therefor and agreed to pay him for such services the sum of $160 when the sale of such land to such purchaser procured by him should be complete. Through plaintiff's efforts, and as a result of consequent negotiations, one of the defendants and a third person entered into a valid and enforceable contract with one Johnson by the terms of which the defendant and the third person agreed to sell the land to Johnson, and Johnson agreed to purchase it at the same price and upon the terms set forth in the contract. Johnson did not perform the terms of that contract. Defendants did not attempt to enforce the contract against him. It did not appear that the contract could not have been enforced. Thereafter and before the commencement of this action, the land was conveyed to Johnson for a consideration and on terms not disclosed. Judgment was thereupon ordered for the plaintiffs in the sum of $160 with interest. The essential question is whether the evidence justified the findings of fact. Plaintiff's testimony that he was to receive his money "when the deals were closed," "when the papers were passed," was consistent with the conclusion of the trial court that plaintiff became entitled to his money when the pur chaser procured by plaintiff was produced to and accepted by the defendants and when the written contract was executed between these parties. The deal was then closed and papers had then passed. It is true that plaintiff, in re sponse to an argumentative question, assigned as a reason for his claim for a commission not that Johnson had signed a contract, but that there had been a transfer of title to him and a payment of money by him. This was bad legal reasoning and not affirmative testimony as to what the agreement for plaintiff's compensation actually was. In no reasonable view was it con 1 Reported in 116 N. W. 1133. trolling. Examination of the evidence as a whole has satisfied us that it justified the findings of fact of the trial court within the familiar rule on that subject. There is no actual similarity between the commission agreement in this case and that in Van Norman v. Fitchette, 100 Minn, 145, 149. Affirmed. MATTIE CHRISTIANSON V. CITY OF TRACY.1 June 5, 1908. Nos. 15,613-(67). Proceeding in the district court for Lyon county to have certain land detached from the city of Tracy. From the judgment and order, Olsen, J., granting the relief prayed for, the city of Tracy appealed. Affirmed. Korns & Johnson, for appellant. F. S. Brown and Somerville & Hauser, for respondent. PER CURIAM. This is an action of the same character and involves the same questions of law as that of Hunter v. City of Tracy, supra, page 378, 116. N. W. 922. The findings of fact in this case were sustained by the evidence. It follows that the judgment appealed from must be, and is, affirmed. FRANKIE COUGHLIN v. JACOB BARNETT.2 June 12, 1908. Nos. 15,543-(43). Action in the district court for Ramsey county to recover $5,100 for personal injuries. The case was tried before Brill, J., and a jury which returned a verdict in favor of plaintiff for $750. From the judgment entered pursuant to the verdict, defendant appealed. Affirmed. John F. Selb and Morton Barrows, for appellant. James R. Hickey, for respondent. Reported in 116 N. W. 925. 2 Reported in 116 N. W. 1133. PER CURIAM. Plaintiff paid for passage and took a seat in one of the cars of a "roller coaster," an amusement device operated by defendant. The car came to a stop. A car coming behind struck it. Plaintiff was thrown from the car, and suffered the injuries for which recovery is here sought. An examination of the record has convinced us that within the familiar rule on the subject, there was enough evidence of negligence on defendant's part to justify its submission to the jury. Inter alia, it was shown that defendant had substituted, for the brass wheels ordinarily used, malleable iron wheels in the rear of the car on which plaintiff was riding; that trial of the car with the new wheels resulted in its stopping at various places on the track; and that, notwithstanding his knowledge to this effect, defendant started another car after the car on which plaintiff was riding had been started. This question was submitted to the jury: "Was there any negligence upon the part of the defendant which caused this collision?" The doctrine whether defendant was a common carrier was not considered. The jury returned a verdict for $750. It is urged that the verdict was excessive, and that plaintiff's alleged injuries were in a measure the result of malingering. The trial court and the jury saw the witnesses and heard the testimony. Nothing in the record has been called to our attention, nor have we been able to find anything, which would justify setting aside the verdict or reducing it. There was no possible error in the charge of the trial court, which excluded the right to recover for any future apprehended damages and limited the amount recoverable to present injuries. Affirmed. INDEX ABATEMENT AND REVIVAL. After verdict, plaintiff died. His mother, as administratrix was sub- -Clay v. Chicago, Milwaukee & St. Paul Railway Co., 1. -Clay v. Chicago, Milwaukee & St. Paul Railway Co., 13. ACCOUNT. In an action for an accounting, it is held that the evidence sustains the --McAlpine v. Millen, 289. ACCOUNT, ACTION ON. The expression "outstanding and open account" has a well-defined mean- |