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conveyed by defendant August 6, 1890, for $1,560. Said purchase money and the taxes paid by defendant, and interest on all of the same up to the time of said sale, amount to $807.32, leav ing $752.68, the balance of the proceeds of said sale, so to be divided between them.

This action is brought for an accounting and a recovery of the sum due plaintiff under said agreement, and the trial court awarded plaintiff one-half of said balance of $752.68, and from the judgment entered thereon defendant appeals. There is no settled case, and the error assigned is, that the judgment is not sustained by the findings of fact.

The court further finds that in July, 1890, without the knowledge of plaintiff, defendant negotiated a sale of said land to said purchaser; that the purchaser procured an abstract of title to said real estate from the register of deeds; that said abstract was in fact false, as it omitted one recorded conveyance, a link in the chain of title, and by such abstract it appeared that the original patentee was still the owner in fee of the land, whereas, in fact, defendant had a good title of record; that the purchaser submitted the abstract to two different and competent attorneys, who each advised him that, according to the abstract, the defendant had no title, 81 and defendant was informed by such purchaser of the opinion of said attorneys. Defendant, believing he had no title, at an expense of $526, then procured a conveyance to himself from said original patentee, and claims that this expense should be allowed him in said accounting as a part of the cost of the land to be deducted from such proceeds of said sale, and that plaintiff is entitled to only one-half of the balance of such proceeds, after this $526 is also deducted therefrom.

It is further found by the court that defendant did not inform plaintiff of any of said negotiations, or of the apparent defect in said title, or show him or inform him of said abstract, or consult him as to purchasing the supposed title of said patentce, and that plaintiff had no knowledge or notice of any of these things, or of the sale of said property to said purchaser from defendant, until after the deed thereof was recorded, and he discovered it by an examination of the records; "that had said defendant exhibited said abstract of title to said plaintiff, or informed him in what respect said title of said defendant was claimed to be defective, said plaintiff could at once have informed said defendant that said abstract was not a true and correct abstract of title to said lands"; and "that plaintiff was not in any manner ever consulted by defendant in regard to said supposed defect of title." The court further finds that defendant acted in good faith in the

sale of the land, and in expending said sum of $526 in attempting to cure the supposed defect in his title, but holds that he cannot compel plaintiff to stand one-half or any part of such expense. We are of the same opinion. If defendant did not act in bad faith, he was, to say the least, grossly negligent. It does not appear that the plaintiff was not accessible and could not be communicated with in a reasonable time. This land was the only partnership property, and its purchase and sale was the only partnership business. It was not an act in the usual course of the partnership business, but one which went to the very foundation of the partnership. It is found by the court that the plaintiff, and not the defendant, conducted the negotiations for the purchase of this land, and procured the conveyance to defendant; and he should be presumed to have had some knowledge of the state of the title. No reason is given by defendant why all the negotiations for the 82 sale of the land and the purchase of this supposed title by him were kept secret from plaintiff. In every important exigency the partner about to act should consult the other partner, at least if there are no circumstances which excuse him from so doing.

The order appealed from should be affirmed.

So ordered.

Gilfillan, C. J., took no part.

PARTNERSHIP-DUTY TOWARD ONE ANOTHER.-The relation existing between partners is one of trust and confidence, and when dealing with each other in relation to partnership matters, they are required to make full disclosure of all material facts within their knowledge in any way relating to the partnership affairs: Caldwell v. Davis, 10 Col. 481; 3 Am. St. Rep. 599. See, also, the extended note to Jones v. Dexter, 39 Am. Rep. 461.

KIRK v. CHICAGO, ST. PAUL, MINNEAPOLIS & OMAHA RAILWAY COMPANY.

[59 MINNESOTA, 161.]

CARRIERS-TERMINATION OF LIABILITY.-A railway corporation, leaving a portable package in one of its cars, instead of putting it in the freightroom, is answerable for the loss thereof by theft, though, had the consignee called for it, it would have been delivered to him two days previous to its loss. In the case of portable packages, a carrier cannot terminate its liability without removing them from the car to its freighthouse.

CARRIERS.-The burden of proving facts which terminate a carrier's liability as such, must be assumed by it.

S. L. Perrin and Lorin Cary, for the appellant.

P. P. Cady, for the respondent.

162 MITCHELL, J. This action was brought to recover the value of certain goods delivered by plaintiff to defendant, a common carrier, for transportation, and which were stolen while in defendant's possession. 163 Both the place of shipment and the place of destination were on defendant's road. The goods were contained in a box, and weighed seventy-five pounds, and were of the value of about seventy dollars. The plaintiff shipped the goods consigned to himself. He did not reside, nor had he an agent, at the place of consignment, and his residence was unknown to the defendant. The car containing the box arrived at the place of destination about half past six o'clock on Thursday evening, August 10, 1893, but the goods were never unloaded from the car. The car was left "sealed," but not locked. The last that was seen of the goods was Saturday evening, when the defendant's agent saw them in the car. When plaintiff called for them, on Monday morning, it was discovered that someone had broken the seal of the car and stolen the box.

It does not appear where the car was left standing, or whether it was at a place suitable for the delivery of goods to consignee. There was evidence that the "station" was open for the delivery of freight on Friday and Saturday from 7 A. M. to 6:30 P. M., but there is no evidence that this box was ready for delivery during that time, although it is, perhaps, fairly inferable from the circumstances that, had plaintiff called for it on either of these days, defendant's agent could and would have gotten it for him out of the car. No reason was shown why defendant left the box in the car, instead of placing it in the freightroom. It does not appear that the defendant had no freightroom, or that there was any necessity for keeping such portable packages in the car, or that there was any general custom at that station of delivering such packages from the car to the consignees. On this state of the evidence, the court directed a verdict for the plaintiff.

The only question raised on this appeal is, whether the defendant's liability as carrier had terminated when the goods were stolen, or, at least, whether, under the evidence, that question should not have been left to the jury. This court has had occasion in at least three cases to consider somewhat at length the old and somewhat mooted question, when and under what circumstances the peculiar liability of a common carrier as such may be terminated before the goods have passed into the possession or custody of the consignee: Derosia v. Winona etc. Ry. Co.,

18 Minn. 133; Pinney v. First Division etc. R. R. Co., 19 Minn. 251; 164 Arthur v. St. Paul etc. R. R. Co., 38 Minn. 95.

In the first of these cases, it was held that if the consignee resides elsewhere than at or in the immediate vicinity of the place of final destination, has no agent there, and his residence is unknown to the carrier (which was this case), the carrier can place the goods in its freighthouse, and after keeping them a reasonable time, if the consignee does not call for them, its liability as carrier ceases. We do not mean to lay down as an inflexible rule, applicable to all cases, that, in order to terminate the carrier's liability, the goods must be removed from the car and put into the carrier's freighthouse. The nature of some kinds of goods, such as coal, lumber, and the like, precludes this. It is usual for the consignees themselves to unload and carry away these kinds of freight directly from the cars. It is also true, as suggested by defendant's counsel, that there is nothing to prevent a carrier, at least under special circumstances, from using the car as its warehouse for the storage of freight. But in the case of portable boxes or packages of valuable merchandise, we think that, under any ordinary circumstances, public policy requires that it should be held the inflexible rule that, in order to terminate the carrier's liability, he must remove the goods from the car in which they were transported and place them for safe-keeping in his freighthouse. We will take notice of the fact that it is the general custom to do so with this class of goods, and to deliver them to the consignees from the freightroom, and not from the car. allow the carrier to terminate his liability for such kinds of goods by any less formal and expressive act would be against public policy. The unloading of cars may be, and often is, delayed for the mere convenience of the carrier; and to permit him in such cases to say that the cars constituted his warehouse for the time being, and that, if the goods had been called for, they would have been delivered to the consignee, and therefore he is not liable for their loss, would inaugurate a very dangerous rule.

To

If the facts existed which had terminated defendant's liability as a common carrier, the burden was on it to prove them, and this it certainly failed to do, even under the most favorable view of the law. The court was right in directing a verdict for plaintiff. We are by no means sure that this direction would not have been 165 correct, even conceding that defendant's liability was only that of a warehouseman; for it would seem grossly negligent to leave a car containing portable packages of valuable merchandise unlocked, and merely fastened with a strip of tin, called a "seal,” which anyone could easily remove.

Order affirmed.

Gilfillan, C. J., absent on account of sickness, tock no part.

CARRIERS-TERMINATION OF LIABILITY.-A carrier who wishes to wholly terminate his liability for goods must store them: Note to Gregg v. Illinois Central R. R. Co., 37 Am. St. Rep. 247; note to Schen v. Benedict, 15 Am. St. Rep. 429; and the note to Mobile etc. R. R. Co. v. Prewitt, 7 Am. Rep. 591.

ANDERSON V. MANCHESTER FIRE ASSURANCE Co.

[59 MINNESOTA, 182.]

INSURANCE - CONSTITUTIONAL LAW.-A statute directing the insurance commissioner of the state to prepare and adopt a blank policy, together with such provisions and conditions as may be added thereto, or indorsed thereon to form a part thereof, such form to conform as near as the same can be made practicable to the form known as the New York Standard Life Insurance Policy, and requiring all insurance corporations, after the adoption of such form, to use it in all policies for fire insurance, and all renewals thereof, does not, of itself, adopt the form referred to as in use in New York, but leaves the commissioner a discretion to add to, or omit from, the provisions of such policy, and is, therefore, void, because it delegates to the commissioner legislative power which can be exercised only by the legislative department of the state.

CONSTITUTIONAL LAW.-THE LEGISLATURE CANNOT DELEGATE to any person or body the power to determine what the law shall be, except when authorized by the constitution to do

80.

INSURANCE-WAIVER.-The delivery of a policy of insurance, with knowledge of other insurance on the same property, waives the condition in the policy making it void if the assured has other insurance.

Action against an insurance company to recover damages sustained by the loss of a frame building from fire. At the time the policy was issued, the building was already insured in the sum of five hundred dollars, as was known to defendant's soliciting agent when he made a delivery of the policy, but consent to such insurance was not indorsed thereon. The plaintiff could not read or write English, and could converse in that language only imperfectly, and was not aware that the policy contained a stipulation against other insurance.

S. T. & William Harrison, and Kitchel, Cohn & Shaw, for the appellant.

John Jenswold, Jr., and Bunn & Hadley, for the respondent.

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