be justified in finding, as he in fact did, that MILWAUKEE HARVESTER Co. v. FINNEGAN (Supreme Court of Minnesota. April 24, 1890.) JOINT AGENTS-STATEMENT OF ACCOUNT-PART NERSHIP. Where two or more persons contract to execute a private agency together, they are jointly liable each for the acts of the other, and are, as to the principal, quasi partners in the agency business, although, as between themselves, the one has no interest in the business which is wholly transacted by the other. An account, within the scope of such business, rendered or stated by the one during the continuance of the quasi partnership, is equivalent to an account rendered by the firm, and is equally binding on both. (Syllabus by the Court.) Appeal from district court, Sibley coun. ty; EDSON, Judge. R. A. & F. C. Irwin, for appellant. W. H. Leeman, for respondent Duffy. in fact had no interest in the business, but merely executed the contract, and assumed the liability of joint agent with Finnegan, in order to give him credit, and enable him to secure the benefits of an agency to handle plaintiff's machines. It does not appear that plaintiff knew this fact, but, for reasons which will be suggested hereafter, it is entirely immaterial whether it did or not. In the fall of 1887 plaintiff's agent and Finnegan had a full accounting and settlement for the season's business, at which it was ascertained and agreed that there was a balance of $325 due the plaintiff. In the fall of 1888 they had a similar settlement and accounting, at which it was ascertained and mutually agreed that there was due the plaintiff, including the amount found due the previous year, a balance of $703.40. Duffy personally took no part in these settlements, and in fact knew nothing about them. In this action against the two defendants to recover this balance as an account stated, Duffy, who alone answered, did not attempt to surcharge this accounting; his defense on the trial being that he was not in fact a partner with Finnegan, and had no interest in the business, and, not having personally taken any part in the accounting, there was as to him no account stated. The court instructed the jury that the whole case turned upon the question whether Finnegan and Duffy were partners; that if Duffy was not a partner, but simply surety for Finnegan, the plaintiff could not recover, for the reason that the action was upon an account stated; and that Duffy took no part in the settlement, and never agreed to any account stated. In view of the evidence, this was equivalent to instructing the jury to find for the defendant, and was clearly error. It is familiar law that where two or more persons undertake to execute a private agency together they are jointly liable each for the acts of the other; nor is it any defense that one of them wholly transacted the business with the knowledge of the principal. Each is liable for the whole, if they jointly undertake the agency, notwithstanding an agreement between themselves to the contrary, or that one shall have all the profits. As to all matters within the scope of this agency, Duffy and Finnegan were, as to plaintiff, quasi partners. The fact that Duffy had no interest in the business, but merely lent his name for Finnegan's benefit, even if known to plaintiff, would not affect his liability or alter his relation to plaintiff. By express contract with plaintiff, he voluntarily assumed the obligations of joint agent with Finnegan, and of a quasi partner with him in the business which was the subject of the contract. The fact that he did so without having, as between himself and Finnegan, any interest in the bus MITCHELL, J. We think the trial judge in his charge to the jury failed to distinguish between what will constitute a partnership of parties inter se, and what constitutes a partnership as to third persons, and also overlooked the rules governing the liability of joint agents or factors to their principal; and that, as a probable consequence of these errors, the verdict is against the evidence. In the spring of 1887 the plaintiff as one party, and the two defendants jointly as the other party, entered into a contract by which the former appointed the latter its joint agents for that season to handle and sell its farm machinery on commission in certain counties in this state, the defendants agreeing to sell it for a stipulated compensation, and to return the proceeds of sales (less their commissions) to the plaintiff, the cash as soon as received, and the notes whenever called for, and to be ready to make a full and complete settlement for the season's business by October 1st. The contract was renewed, or, rather, a similar contract was made in the spring of 1888 for the following season. Pursuant to these contracts, the plaintiff shipped to defendants, at Shakopee, in 1887 and 1888, a large number of machines; which, however, at Finne-iness, did not induce credit any the less. gan's request, were consigned to him individually, he giving as a reason that Duffy did not want it known that he was interested in the business. The business was managed exclusively by Finnegan; the defendant Duffy, who resided on a farm some distance from town, taking no active part. Indeed, it appears from the evidence that, as between Finnegan and Duffy, the latter On the contrary, the very fact that he contracted to assume these relations and obligations constituted the very basis of the credit given to and the trust confided in him and Finnegan as plaintiff's joint agents. Whart. Ag. § 142; Godfrey v. Saunders, 3 Wils. 73; Brown v. Leonard, 2 Chit. 120. Therefore, upon the undisputed facts, Duffy and Finnegan were, as to plaintiff, quasi partners in this agency | (43 Minn. 180) KENYON et al. v. SEMON. amount of a promissory note, of $400, given by the defendant to Vogely, January 1, 1881. The defendant admitted the making of the note, but alleged in defense that its execution was procured by false representations, and that there was no consideration for it. It appears from evidence in the case that long prior to the making of this note the defendant had executed to other parties two notes, for $400 and $300, respectively, which Vogely had executed with him as his surety. The defendant claimed, and produced evidence tending to show, that the note sued upon was given in renewal of an earlier note to reimburse Vogely for payments which he claimed to have made upon those obligations of the defend (Supreme Court of Minnesota. April 24, 1890.) ant. The case also showed that long before PLEADING-COMPLAINT-DESIGNATION OF PARTIES. The fact that the parties to an action are designated by the initials of their Christian names is no ground for the dismissal of the complaint, or reversal of the judgment. The proper remedy is by motion to require the complaint to be corrected or amended. (Syllabus by the Court.) the giving of the note in suit the plaintiff, Vogely, executed with the defendant and the brother of the latter a note for $700 to one Elmer; the plaintiff being a surety for the other makers. The claim of the plaintiff is that the note in suit was made to reimburse Vogely on account of the payment by hm of the note to Elmer. The defendant (appellant) concedes that the evi Appeal from municipal court of Minneap-dence was sufficient to justify the concluolis; MAHONEY, Judge. Action by A. H. Kenyon and others against J. S. Semon and others. From a judgment for plaintiffs, defendant W. H. Semon appeals. C. E. Co N. H. Miner, for appellant. C. E. Conant, for respondents. sion of the jury that the note in suit had its origin in the note to Elmer. It having been shown that Elmer had died, certain entries in private books, which he had kept, were introduced in evidence by the plaintiff; it being further shown that these entries were in the handwriting of Elmer. The defendant's assignments of error in respect to this evidence should not be sustained. Exhibit J embraces the following statement or memorandum by Elmer in his book, under date of April 1, 1869: "According to note, I have loaned to the brothers Fridolin [this defendant] and MITCHELL, J. The practice of designating the parties, either plaintiff or defend ant, by the initials of their Christian names, is irregular, and has been more than once disapproved by this court; but it is no ground for the dismissal of the complaint, or for a reversal of the judg-Jacob Bom, and Jost Vogely, money to ment. The proper remedy, in such a case, is by motion to require the complaint to be amended or corrected in that respect. The other question sought to be raised is not involved in this appeal, at least on the present record. Order and judgment affirmed. (43 Minn. 163) VOGELY V. BLOOM. (Supreme Court of Minnesota. April 17, 1890.) EVIDENCE-DECLARATIONS AGAINST INTEREST-DE CEDENTS. 1. Declarations made by a person since deceased may be received in evidence in an action between other parties, if it appear that the person making the declaration had knowledge of the fact declared, and that the declaration was against his interest. 2. Evidence held sufficient to justify the verdict. (Syllabus by the Court.) Appeal from district court, Nobles county; PERKINS, Judge. Action by Jost Vogely against Fred Bloom. Plaintiff having died pending the action, his administrator, J. C. Zimmerman, was substituted plaintiff. Daniel Rohrer, for appellant. Geo. W. Wilson, for respondent. DICKINSON, J. This action was commenced by the above-named Jost Vogely, and was tried in the district court before his death. The action was to recover the the amount of 700.00, which they are to two other persons. From another page | of the book, entries were also received, under the defendant's objection, relating to Jost Vogely's note of $700, and acknowledging the receipt of interest on it, and, under date of April 2, 1877, that Vogely had paid the same, excepting a specified sum which had been thrown off. These entries as to Vogely's note were admissible in connection with those before introduced, and for the same reason. The reasons upon which the admissibility of secondary evidence of this character rests are such that it is not essential that the entries or declaration be shown to have been made at the time of the transactions referred to. The entries from the same book embodied in the case as Exhibit L were not objectionable as being an attempt to impeach the defendant's testimony as to collateral facts. This evidence tended to rebut the defendant's claim that he had paid the $700 note to Elmer. The refusal of the court to instruct the jury as requested in respect to the asserted counter-claim growing out of the Stauffacher note was justified for the reason that the court had already instructed the jury, in effect, that, by the concession of the plaintiff, that item was to be allowed in favor of the defendant. We are of the opinion that the verdict, which was a little less than the amount of the note sued on, was not greater than was justified by the evidence. The case justified the jury in concluding that after allowing an account of the indebtedness existing at the time of the giving of this note, all the matters of counter-claim which were established in favor of the defendant, the indebtedness was at least as large as the note given therefor. A review in this opinion of the evidence upon these matters would serve no useful purpose. Order affirmed. (43 Minn. 171) judgment, Barwise was not the owner of the other. An assignee of a judgment takes it, of course, subject to the equities between the parties to it. But such equities, to affect him, must exist at the time of the assignment. He cannot be affected by those that may subsequently arise. At the time of this assignment there were no counter-judgments to be set off, and no equity of set-off could exist. Order affirmed. MITCHELL, J., took no part in the decis (Supreme Court of Minnesota. April 24, 1890.) MORTGAGES-REDEMPTION-TACKING-PURCHASER UNDER JUNIOR MORTGAGE. 1. Rule in Pamperin v. Scanlan, 28 Minn. 345, 9 N. W. Rep. 868, and Parke v. Hush, 29 Minn. 434, 13 N. W. Rep. 668, that the holder of the purchaser's interest upon a foreclosure or execution sale, in order to tack a subsequent lien to it for the purposes of redemption, must place himself in the line of redemptioners, with respect to such subsequent lien, by complying with the statute, followed. 2. The purchaser at the foreclosure of a junior mortgage may, within the year from the foreclosure sale, redeem from the foreclosure of a prior mortgage as "a creditor having a lien. " (Syllabus by the Court.) Appeal from district court, Polk county; MILLS, Judge. White & Hewit, for appellant. Pierce & Cromb and P. C. Schmidt, for respondent. GILFILLAN, C. J. At the times of executing the several mortgages hereinafter mentioned, one Peter Borden was the owner of the real estate in this action involved. July 19, 1882, he executed a mortgage on the property, with a power of sale, to the trustees of Beloit College, which mortgage was duly recorded July 20, 1882. February 25, 1887, this mortgage was duly foreclosed under the power, and the trustees became the purchasers at the sale. The certificate of sale was recorded the same day. February 18, 1888, the trustees assigned the certificate to plaintiff, and the assignment was record WYVELL V. BARWISE et al. (Supreme Court of Minnesota. April 24, 1890.) SET-OFF-JUDGMENTS-PRIOR ASSIGNMENT. June 22, 1888, B. recovered judgment against W., and on the same day assigned it to K., who still owns it. June 24, 1889, W. recovered judged February 29, 1888. May 23, 1885, Borment against B. Held, that the court cannot set the judgments off against each other. (Syllabus by the Court.) Appeal from district court, Wadena county; HOLLAND, Judge. Lyman B. Everdell, for appellant. A. G. Broker, for respondents. GILFILLAN, C. J. Appeal from an order efusing a motion to set off judgments against each other. June 22, 1888, respondent Barwise recovered judgment against the appellant, and on the same day assigned it to the respondent Katzky, who now owns it. June 24, 1889, appellant recovered judgment against Barwise. These are the judgments sought to be set off. There are other reasons upon which the court might have refused the motion, but the above statement of the facts presents one that renders the consideration of any other unnecessary. There could be no right of set-off of the judgments till both existed. When appellant recovered his den executed a mortgage on the same property to one Sweet, which was recorded June 2, 1885. Afterwards Sweet assigned this mortgage to plaintiff, and the assignment was recorded January 28, 1886. December 28, 1885, Borden executed to the plaintiff a mortgage, with a power of sale, on the same property, which was recorded December 31, 1885. Afterwards plaintiff duly assigned this mortgage to defendant, and the assignment was recorded June 27, 1887. August 16, 1887, defendant foreclosed this mortgage under the power, and at the sale became the purchaser, bidding in the property at the full amount of the debt secured by the mortgage. The certificate of sale was recorded August 23, 1887. Plaintiff did not attempt to redeem from the foreclosure of the first mortgage, nor file any notice of intention so to do. February 24, 1888, defendant filed notice of intention to redeem from said foreclosure, and within the proper time made redemption, paying to the sheriff the amount re quired for redemption from that foreclos- | ure, if he was not required to pay the second mortgage then held by plaintiff, but on account of which he did not pay anything. The sheriff executed to defendant the usual certificate of redemption, which was recorded February 28, 1888. The action is brought to have the redemption declared null, and the certificate canceled. The court below rendered judgment for the defendant. The appellant's propositions in regard to the redemption may be reduced to these two: First. If the defendant's right of redemption was that of a creditor having a lien, he could not make redemption without paying the amount of the second mortgage then held by plaintiff, who also then owned the right of the purchaser on the foreclosure of the first mortgage. Second. But, as defendant's debt was extinguished by the foreclosure of the mortgage held by him, at which the property was bid in for the whole amount of the debt, he was not a creditor having a lien, and could not redeem as such; and, if regarded as an "assign" of the mortgagor, for the purpose of redemption, he could redeem only within the year, and redemption by him would merely annul the sale from which he redeemed. The first of these propositions is disposed of by the decision in Pamperin v. Scanlan, 28 Minn. 345, 9 N. W. Rep. 868, followed in Parke v. Hush, 29 Minn. 434, 13 N. W. Rep. 668, in which it was held that the holder of the purchaser's interest at a foreclosure on execution sale, in or der to tack a subsequent lien to it for the purposes of redemption, must place himself in the line of redemptioners, with respect to such subsequent lien, by complying with the statute. Those decisions have stood so long without question that they must now be regarded as establishing a "rule of property" and they ought to be adhered to. | who have interests or claims which may be cut off by a foreclosure or execution sale to save their interests or claims so far they may without impairing the rights of those in whose behalf such sale was made or who purchased at such sale, it must be held that the foreclosure of a subsequent lien does not take from it the right of redemption. In the case of a junior mortgage, the purchaser at the foreclosure of it is, in some sense, until the mortgagor's title passes to him by expiration of the time for redemption, the successor of the mortgagee. It is true his right and interest is different in some respects from that of the mortgagee. But is the difference such as to transfer the right, as concerns the purpose of redemption, from the class in which the mortgage belonged before foreclosure to another class, that of 'assigns.' The title of the mortgagor does not pass by the foreclosure till his right of redemption expires. Section 12, c. 81, Gen. St. 1878; Daniels v. Smith, 4 Minn. 172, (Gil. 117;) Donnelly v. Simonton, 7 Minn. 167, (Gil. 110;) Horton v. Maffitt, 14 Minn. 290, (Gil. 216;) Standish v. Vosberg, 27 Minn. 175,6 N. W. Rep. 489. The foreclosure sale attaches this condition to his title; that it will pass at the end of a year from the sale unless he, his heirs, executors, administrators, or assigns redeem. The court, in Whitney v. Huntington, 34 Minn. 458, 26 N. W. Rep. 631, in speaking of the right of a purchaser at an execution sale pending the time of redemption, purposely and carefully refrained from giving it a designation or description. In Lindley v. Crombie, 31 Minn. 232, 17 N. W. Rep. 372, it is spoken of as a right to have the title vest by lapse of time, if not prevented by redemption. The lien of the mortgage is not extinguished until it merges in the legal estate, when that passes by lapse of time. It has passed, indeed, to the purchaser,that is, to the amount of the purchase price, so that, if he go into possession The other proposition presents a ques-under the foreclosure, even though it be tion not free from doubt, to-wit, to which | class of persons entitled to redeem, “assigns" or "creditors_having_liens," does the purchaser at the foreclosure of a junior mortgage belong? In Cuilerier v. Brunelle, 37 Minn. 71, 33 N. W. Rep. 123, it was held that within the meaning of those sections of the statute giving the right to reJeem, and prescribing how and when redemption may be made, the mortgagee in a junior mortgage, not foreclosed, is not an “assign,” but is a creditor having a lien. The status in respect to this, of the purchaser under a foreclosed junior mortgage, before the title under the foreclosure has passed to him, has never been decided. The matter was before the court, but not decided, in Tinkcom v. Lewis, 21 Minn. 132. In the opinion in that case, Mr. Justice YOUNG recognizes the difficulty of considering the purchaser as a creditor, but says: "On the other hand, there are equal, if not greater, difficulties in the way of holding that during the year following the sale such purchaser is an 'assign' of the mortgagor, within the meaning of section 13." When we have in view the general purpose of the statute giving and regulating the right of redemption, to-wit, to enable all invalid, he is regarded as a mortgagee in possession. Martin v. Fridley, 23 Minn. 13; Johnson v. Sandhoff, 30 Minn. 197, 14 N. W. Rep. 889. That the purchaser has a lien for the purchase price does not remove the difficulty the court found, in Tinkcom v. Lewis, in holding him a creditor having a lien. In that opinion it is said: "For the mortgage debt was satisfied by the sale, and the purchaser at a mortgage sale does not become a creditor of the mortgagor, in the usual sense of the term." We think, however, on reflection, that the term "creditor," as used in the statute, ought not to be construed as having the limited sense of a "personal creditor." There may be a creditor, so far as concerns the land alone, without the personal relation of debtor and creditor, in the ordinary sense, existing. Thus, a mortgage might be given without any personal liability, any liability beyond the land, any right in the creditor of recourse except to the land; or a mortgage might secure the debt of a third person. In such case the mortgagee would not be a "creditor" of the mortgagor, in the usual sense of the word. Yet there could be no doubt that he would have the right of redemption as a creditor having a lien, within the meaning of the statute. Construing the term "creditor," as used in the statute, as including one having a right of recourse to the land for satisfaction of his claim or demand, though he may have no personal claim against the mortgagor, we think the purchaser at a mortgage foreclosure sale comes within the class of redemptioners, "creditors having liens." Those words may not accurately describe his relation to the land, but they come more nearly doing so than the word "assigns." We hold, therefore, that defendant's redemption was valid, and that by it he acquired the title passing under the foreclosure of the first mortgage. Judgment affirmed. In McCroy v. Toney, (Miss.) 5 South. Rep. 392, it was held that a parol lease to commence in futuro was not rendered invalid by that fact. A parol demise for more than a year vests no term in the lessee, but he becomes a tenant at will merely, subject to pay rent at the stipulated rate, Talamo v. Spitsmiller, (N. Y.) 23 N. E. Rep. 980; but the tenancy may be changed into a tenancy from year to year, by annual payment and acceptance of rent, Dumn v. Rothermel, (Pa.) 3 Atl. Rep. 800. A subsequent ratification of a parol lease must be in writing. Id. An oral agreement to renew a lease for three years is extinguished by a subsequent written lease to the same lessee for one year. Stuebben v. Granger, (Mich.) 29 N. W. Rep. 716. See, also, Kramer v. Amberg, 3 N. Y. Supp. 240. A verbal agreement to rent for one year at a certain price per month, and for a second year at a different price per month, creates a tenancy from year to year, and not at will. Schneider v. Lord, (Mich.) 28 N. W. Rep. 773. A lease which has been reduced to writing, acted on, and partly performed is binding, though not signed. Loan & Trust Co. v. Railway Co., 2 Fed. Rep. 117. A lease which is void, because resting in parol, may be rendered valid for the full term by part performance. Bard v. Elston, (Kan.) 1 Pac. Rep. 565; Wallace v. Scoggin, (Or.) 21 Pac. Rep. 558. A note for rent given by a lessee under a parol lease is, with letters referring to it, a sufficient memorandum to take the lease out of the statute of frauds, as against the lessee. Insurance Co. v. Oliver, (Ála.) 2 South. Rep. 445. A tenancy from year to year cannot be created by an oral agreement to work land on shares for a term of five years, followed by occupancy of the land for two years under the agreement. Unglish v. Marvin, 8 N. Y. Supp. 283. DICKINSON, J. July 10, 1889, these parties entered into an oral agreement, the plaintiff leasing to the defendant certain real property for the term of one year from the 1st day of August at a yearly rental of $780, payable in monthly installments, in advance. The defendant entered into the occupancy of the premises on the 1st day of August, and remained in possession until the 28th of September, when he went out. This action is for the recovery of the stipulated monthly rental for the month of October, payable, according to the terms of the agreement, on the 1st of that month. By the terms of our statute of frauds (title 2, c. 41, Gen. St. 1878) no action is mantainable upon a mere parol agreement that by its terms is not to be performed within one year from the making thereof, (section 6;) no estate or interest in lands, other than leases for a term not exceeding one year, nor any trust, etc., shall be created, unless by act or operation of law, or by deed or conveyance in writing, etc., (section 10;) and every contract for the leasing for a longer period than one year, or for the sale of any lands, or any interest in lands, shall be void unless the contract, or some note or memorandum thereof, expressing the consideration, is in writing, and subscribed by the party by whom the lease or sale is to be made, or by his authorized agent, (section 12.) The agreement upon which this action is prosecuted is clearly within the language of section 6. By its terms the agreement was not to be performed within one year from its making. There is no reason why that section should not be deemed applicable to such a case as this, unless it is to be considered that the exception in section 10, and the implied exception in section 12, of leases "for a term not exceeding one year," or for a period not longer than one year, are effectual to exclude from the operation of section 6 leases for a term of one year, to commence in futuro. The reasons which led to the enactment of that part of section 6, above referred to, are as applicable to parol agreements leasing land, not to be performed within one year, as in respect to any other kind of a contract. The evil result likely to follow from allowing such a contract, the performance of which is to be long postponed, to rest in parol, without any written evidence showing the terms of the agreement, are of the same nature, and just as likely to occur, as in the case of any other contract. If a merely oral lease may be effectually made for a year to commence in futuro, it matters not how long the commencement of the term may be postponed. If such a case is not within the provision of section 6, then a lease may be thus made for a term to commence many years subsequent to the agreement. Such a case is so clearly within the plain, explicit language of section 6, and would so obviously involve the very evils to avoid which has been the well-undertood purpose of this clause of the statute of frauds, that it should be construed as applicable, unless the cther sections of the law very clearly manifest the intention to withdraw or exclude such cases from its operation. Such an intention is not manifest. Full effect may be |