the defendant Ida Pearson. Haluptzok v. Great Northern Ry. Co., 55 Minn. 446, 57 N. W. 144, 26 L. R. A. 739.

Reversed as to appellant Ida Pearson, and affirmed as to appellant Wyline Pearson.

as surety for and at the request of the plaintiff, and that the plaintiff received all of the consideration for said note.

The parties live upon farms several miles apart. Neither was present when the other signed the note. The plaintiff never requested defendant to sign the note. There was a dispute as to which signed first. The cashier of the bank and Mrs. William Pope, a sister of the defendant, took the note out to defendant's home, where she signed it. At the trial BILLS AND NOTES 47-EVIDENCE defendant offered parol testimony to show (8), 423(8)-SURETY-STIPULATION-HEARSAY in what capacity she signed the note, claim-PAROL EVIDENCE.

POPE v. HOEFS. (No. 20899.) (Supreme Court of Minnesota. July 5, 1918.) (Syllabus by the Court.)

121

Where a person signs a joint note, at the request of the principal debtor, he may, in the absence of any understanding with a prior surety to the contrary, stipulate with the principal and make it a condition of his signing that he signs only as surety to those signing prior to his signing; and such fact may be shown by parol evidence without being subject to objection as hearsay.

ing that the plaintiff had signed the same as principal and that she signed as surety for him. She was asked to state what was said at the time she signed the note as to whether she was to sign as surety or otherwise. This class of testimony was excluded upon the objection that the same was incompetent, immmaterial, hearsay, and not binding upon the

Appeal from District Court, Le Sueur plaintiff, having been said in his absence. If, County; C. M. Tifft, Judge.

Action for contribution by Fred Pope against Susan Hoefs. Verdict for plaintiff, and from an order denying her motion for a new trial, defendant appeals. Reversed.

Moonan & Moonan, of Waseca, for appellant. Thomas Hessian, of Le Sueur, for respondent.

as contended by plaintiff, the loan from the bank was for William, and the plaintiff merely signed as surety for him, then what was said between the payee and the defendant at the time she signed was competent evidence, as part of the res gestæ. Bobbitt v. Shryer, 70 Ind. 513. Again, if, as claimed by the defendant, the plaintiff had signed the note prior to the time it was presented to her for her signature, without any representation, that would have been equivalent to a representation that plaintiff had signed as principal. It is a well-settled rule that, where one signs a joint note at the request of the principal debtor, to enable him to use it as intended, he may without the knowledge of a prior surety and in the absence of any understanding with him to the contrary, stipulate with the principal debtor or the payee and make it a condition of his signing that he signs as surety of the prior parties. Oldham v. Broom, 28 Ohio St. 41. And such fact may be shown by parol evidence. Melms et al. v. Werdehoff, 14 Wis. 19.

QUINN, J. This action was brought to compel contribution, upon the ground that the parties hereto were cosureties on a note, joint and several in form, for $3,722.33, executed by them on December 19, 1912, and payable on demand to the First State Bank of Le Sueur Center. No consideration passed to either of the makers of the note, but the full amount thereof was paid by the bank for a stock of merchandise purchased in the name of the plaintiff for his brother, William Pope, who at the time of the purchase went into possession of the same, and sold at retail therefrom for a number of months. He then disposed of the balance of the stock in bulk. From the proceeds of such sales he made payments on the note referred to, so that on April 15, 1914, there was due thereon a balance of $1,636.91, which amount the plaintiff paid to the bank. This action was brought by the plaintiff to recover one-half of the amount so paid, with interest, from the defendant as cosurety on the note. Plaintiff recovered a verdict, and from an order deny- (Supreme Court of Minnesota. June 28, 1918.) ing her motion for a new trial defendant appealed.

It is the contention of the plaintiff that both he and the defendant signed the note in question as accommodation makers for William Pope, and that the proceeds of the note went entirely to the payment of the stock of goods referred to. The defendant admits in her answer the execution of the note, but alleges that she signed the same

We are of the opinion that the testimony which was excluded should have been receiv ed, and that a new trial should be granted. Reversed.

DALSGAARD v. MEIERDING.
(No. 20908.)

(Syllabus by the Court.)

1. PHYSICIANS AND SURGEONS 18(8)-MAL-
PRACTICE-SUFFICIENCY OF EVIDENCE,
Evidence considered, and held sufficient to
support the findings of the jury upon the ques-
tion of defendant's alleged negligence.
2. INFANTS 79-PARTIES 76(5)—WAIVER
OF DEFECT OF PARTIES GUARDIAN AD
LITEM-APPOINTMENT AFTER VERDICT.
Action to recover damages for injuries to
a minor, brought by his father under Gen. St.
1913, § 7678. Held, that by answering to the

merits, defendant waived the objection that a, fied that the mother moved about in the bed defect of parties plaintiff appeared upon the considerably during her labor, but remained face of the complaint. It is further held that the appointment of a guardian ad litem thereaft-practically quiet thereafter; that he paid no attention to how the irons were placed in the bed; that it was the continuance of the cry that caused him to raise the cover and discover the flat iron.

er was proper.

3. CHARGE Of Court.

The case was fairly submitted to the jury, and we find no reversible error in the charge.

Appeal from District Court, Brown County; I. M. Olsen, Judge.

It is not necessary to detail the testimony bearing upon the question of negligence. It Action by Willard Hemmingsen Dalsgaard, is claimed on the part of the plaintiff that, a minor, etc., by Hans Dalsgaard, his father, the defendant knowing of the presence of against William A. Meierding. Verdict for the hot flat irons in the bed, it was negliplaintiff, and from an order denying defend-gence on his part to have failed to look where ant's motion for judgment or a new trial he he placed the child; that he should have conappeals. Affirmed.

Moore, Oppenheimer & Peterson, of St. Paul, and Somsen & Dempsey, of New Ulm, for appellant. Erickson & Loomis, of Springfield, for respondent.

QUINN, J. Action to recover damages for injuries sustained by the minor child named as plaintiff herein, as the result. of alleged negligence on the part of the defendant. Plaintiff recovered a verdict, and from an order denying his motion for judgment or a new trial the defendant appealed.

sidered that the motion of the mother during flat irons and cause them to become unwrapher labors was likely to interfere with the ped and move toward the middle of the bed,

where the child was placed, and that his duty as the physician in charge required of

which he is liable. It is the claim of the de

him to look so as to avoid the hot iron; and that his failure so to do was negligence for fendant that the child was accidentally burnpart. It is also insisted on his behalf that ed, without any fault or want of care on his the testimony in the case is insufficient to support the verdict. The case is not only an unfortunate, but a very unusual, one. Physicians generally, as is their duty under cir

cumstances as detailed in this case, look well

[1] The parents of the plaintiff, and the defendant, who is a physician and surgeon, all reside at Springfield in this state. During the evening of February 24, 1917, in re-to the surrounding conditions and to the sponse to a call, the defendant went to the welfare of their patients. But we are unDalsgaard home to attend Mrs. Dalsgaard in childbirth. Upon arriving at the home the doctor found Mrs. Dalsgaard sitting near

the heater, and immediately put her to bed. She complained of being cold. He asked for a hot water bottle, and, being informed that they had none, he directed the husband and grandmother to wrap some hot flat irons and place them in the bed at the patient's

feet so as to warm her. These directions

were complied with. Shortly thereafter the mother was delivered of the child named in this action as plaintiff. When the baby was born it did not breathe well, and to stimulate and start it breathing the doctor slapped the child a few times, and then laid it back with its mother and placed a cover over him. Shortly the child began to cry vigorously.

The mother remarked about the fact. The

able to say in this case that the findings of the jury are not supported by the testimony.

The trial court fully and fairly submitted the case to the jury, and their verdict is

final.

[2] The action as brought was "Willard Hemmingsen Dalsgaard, a minor, by Hans Dalsgaard, His Father, v. William A. Meierding." Defendant answered, putting in issue all of the allegations of the complaint. At the opening of the trial defendant objected to the introduction of any testimony on the ground that the complaint failed to state facts sufficient to constitute a cause of action. The court overruled the objection, holding that the action was brought under section 7678, G. S. 1913, and that the defendant, by answering to the merits, had waived the objection that there was a want of capacity in the plaintiff to sue. After verdict and upon petition for appointment of a guardian ad litem, the court made an order, appointing Hans Dalsgaard guardian ad litem of Wil"It is no wonder the baby continues crying lard Hemmingsen Dalsgaard, and authorizso long, as the flat iron has become unwrap-ed him to prosecute the action. Section 7754, ped and has slid against the baby's head." G. S. 1913, provides that where there is a The right side of the face had been burned, the burn extending several inches above the ear and several inches below the lobe of the ear. The burn was deep, down to the skull. Later the upper rim of the ear sloughed off, and a part of the outer layer of the

doctor raised the child up, but placed it back. The child continued to cry, and finally the defendant lifted the quilt and saw the flat iron against the baby's head. He removed the iron, and said to the parents:

want of capacity to sue appearing affirma-
tively upon the face of the complaint, the
defendant may demur thereto, and section
7755 provides that objections not so taken
by demurrer shall be deemed waived.
ruling of the trial court was correct. Pope

The

[3] We have examined the charge given by the trial court to the jury, and find no error therein. Affirmed.

In re KELLEHER'S ESTATE. KELLEHER et al. v. KELLEHER.

(No. 20909.)

and collected $2,000 upon the benefit certificate. At the time of the filing of the final account by the executrix, the respondents petitioned to the probate court for an allow ance of $2,000 out of the estate under the terms of the will, sections 2 and 3 of which are as follows:

"II. I hereby give, devise and bequeath to my beloved children by my former wife, that is to say: John, aged twenty-three; William. aged twenty-one; Mary, aged nineteen; and

(Supreme Court of Minnesota. July 7, 1918.) Margaret, aged sixteen, all of the proceeds of a

certain policy of life insurance in a society known as the Modern Woodmen of America, of which society I am an insured member, and the proceeds of which policy will entitle the beneficiaries to the sum of two thousand dollars ($2.000.00) on my death, the proceeds of which policy I desire to be divided equally among the four children above named, share and share alike, free of any and all debts and incumbrances.

"III. I hereby give, devise and bequeath all both real, personal and mixed, wheresoever sitof the property of which I may die possessed, uated, except the proceeds of the insurance poliSusie Kelleher, to have and to hold unto the cy above mentioned, to my present beloved wife, said Susie Kelleher, her heirs and assigns forever, with the power to sell and dispose of the same when in her judgment it will be for the best interests of herself and children so to do. "It being my will and desire and intent that be used by my wife for the maintenance of of my three children by my present wife, to wit: herself and for the maintenance and education Johanna, Dennis and Susan, aged respectively four years, two years, and six months, at the time of the ensealing of these presents.'

Appeal from District Court, Cottonwood the property of which I may die possessed may County; L. S. Nelson, Judge.

In the matter of the estate of Dennis Kelleher. Petition by William Kelleher and others to the probate court for an allowance of a certain sum out of the estate under the terms of the will, opposed by Susan Kelleher, executrix and accountant. Petition denied, and from a judgment of the district court on appeal, reversing the order of the probate court, and from an order denying a motion for a new trial, the executrix appeals. Affirmed. Wilson Borst, of Windom, for appellant. O. J. Finstad, of Windom, for respondents.

The first benefit certificate, which was in force at the time of the execution of the will, contained the following provision:

"That in the event of the death of any beneficiary prior to the death of said neighbor, and ciary, then the amount to be paid under this upon his failure to designate another beneficertificate shall be due and payable to the other none survive him, then to the legal heirs of said surviving beneficiaries, if any there be, or if neighbor."

QUINN, J. In January, 1898, Dennis The testator at the time of his death ownKelleher took out a benefit certificate in the ed 160 acres of land, upon which he lived, Modern Woodmen of America, for $2,000, of the value of $20,000, and personal proppayable at his death to his wife, Hannah Kel- erty to the amount of $2,900, all of which the leher. There were four children, the issue of appellant took under the will, except suffithis marriage, namely, John, William, Mary, cient thereof to defray the expense of adand Margaret, the respondents herein. The ministering the estate. She also retained mother of these children died in 1908. In 1911 the amount collected on the benefit certificate, Dennis Kelleher married Susan Kelleher, the notwithstanding the provisions of the will. executrix and appellant herein. There are The probate court denied the petition of the three young children, the issue of this mar- respondents, holding that the provisions of riage. On January 18, 1916, Dennis Kelleher paragraph 2 of the will constituted a specific made his last will and testament as herein- legacy, and that the proceeds of the benefit after set forth. On February 5, 1916, he had certificate did not constitute a part of the the name of the beneficiary in the certificate testator's estate, and that the legacy in queschanged to that of the appellant, which was tion could not be supplied from the general done by the issuance of a new certificate. assets of the estate. From this order the peDennis Kelleher died at his home on his titioners therein appealed to the district farm in Cottonwood county on September 15, court, where the order of the probate court 1916. Thereafter the will was admitted to was reversed. From an order denying her probate in Cottonwood county, appellant qual-motion for a new trial testatrix appealed. ified as executrix, and the estate was fully [1, 2] We are of the opinion that it clearly probated. Appellant made proof of death appears from the will, when considered in

The appellant, having taken under the will, is bound by the terms thereof, and should pay over to the respondents the proceeds of the benefit certificate in question. Affirmed.

view of all the surrounding circumstances, will. 1 Jarman on Wills, 445; 1 Pom. Eq. that it was the intention and purpose of the Jur. § 464. testator that the farm, which included the homestead, should, at the time of his death, descend to his widow, with the power to sell and dispose of the same for the best interests of herself and three minor children, and at the same time to make provision for his four children by his former wife, who had remained at home and assisted him until they attained their majority. It is provided in paragraph 2 of the will:

NELSON v. MCELROY et al. (No. 20847.) (Supreme Court of Minnesota. Aug. 2, 1918.)

(Syllabus by Editorial Staff.)

VENDOR AND PURCHASER

CONTRACT-LIABILITY.

316—Breach of

When, in an unenforceable contract for the exchange of land, one party conveys and the other does not, the party not performing must pay a consideration for what he received, and, if the price of the land which he failed to convey was fixed, that price may be recovered,

On motion for reargument. Denied.
For former opinion, see 168 N. W. 179.

PER CURIAM. Appellant's petition for reargument has impressed us with the idea that perhaps the ground of our decision has not been made sufficiently clear.

What we hold is that when, in an unen

It is clear that the proceeds of the benefit certificate belonged to the testatrix who was named as beneficiary in the policy, and that the legacy mentioned in paragraph 2 of forceable contract for the exchange of land. the will is specific. Appellant, however, took one party conveys and the other does not, all of the real estate, including the home- the party not performing must pay a consideration for what he received, and, if the price stead, and all of the personal property under the terms of the will; and her right de- of the land which he failed to convey was pends upon whether she thereby confirmed fixed, that price may be recovered. This is and ratified the provisions of paragraph 2 but another way of saying the price of the of the will by which her interest in the pro-and under well-settled principles this may be land which was conveyed may be recovered, ceeds of the insurance was disposed of by done. The trial court did not adopt just this giving the same to the respondents. It is a well-settled rule of equity that a person can- theory of the case; but, since the evidence as not take under a will and at the same time to the portion of the price represented by the set up any right which will defeat any part disputed, we are of the opinion the case may land to be conveyed by defendants was not of it. If a testator has disposed of property owned by a beneficiary under the will, such beneficiary must either relinquish his right to such property, or to that which is given him by the will, and must accept the will as a whole, or not at all. Story's Equity, § 1077; Ditch v. Sennott, 117 Ill. 362, 7 N. E. 636; Gorham v. Dodge, 122 Ill. 528, 14 N. E. 44; Van Schaack v. Leonard, 164 Ill. 602, 45 N. E. 982; Washburn v. Van Steenwyk, 32 Minn. 336, 20 N. W. 324; Brown v. Brown, 42 Minn. 270, 44 N. W. 250: Sorenson v. Carey, 96 Minn. 202, 104 N. W. 958.

be affirmed on this theory.

In our opinion the defendant Blomberg was properly held. No question of election is presented by the record.

Motion for reargument denied.

STATE v. RUTHER. (No. 21003.) (Supreme Court of Minnesota. Aug. 2, 1918.)

(Syllabus by Editorial Staff.)

-

INDICTMENT AND INFORMATION 137(4)
MOTION ΤΟ QUASH-WITNESSES-WIFE OF
ACCUSED.

A motion to quash an indictment against a husband, because his wife had been required by the state to give evidence against him before the grand jury, was properly denied.

The intention of the testator is clear. The terms of the will give to the respondents the proceeds of the insurance, and to appellant all of the real and personal property, except alone the proceeds of the insurance. It is immaterial whether the testator had power to dispose of the proceeds of the certificate, which he undertook to dispose of as his own. The doctrine of election rests upon the ground that one who asserts his claim to property under a will must acknowledge the equitable rights of all others under the same manded.

Case Certified from District Court, Rice County; Arthur B. Childress, Judge. August Ruther was indicted for an offense, and the trial court certified a certain question. Question answered, and

cause re