falling among those on the balcony; that flames came out of the window in close proximity; that plaintiff and others with her were afraid that the walls would fall in; that one of the women climbed down and hung to a bracket under the balcony for some time before being rescued, and that all were more or less seized with terror. Under such circumstances it would be strange if any jury would find contributory negligence in trying to escape in the way attempted by plaintiff; surely the court ought not so to hold.

We do not think any other question merits consideration, or is presented by the record.

Judgment affirmed.

NATIONAL COUNCIL OF KNIGHTS AND LADIES OF SECURITY v. JACOB RUDER.1

1. An action cannot be maintained to set aside a judgment claimed to have been procured by means of perjury upon issues of fact so defined that each party must have known what the other party intended to prove.

2. Where the complaint in an action to restrain the enforcement of a judgment is within this rule, an order, purporting to have been made upon the merits, denying an application for a temporary injunction, must be sustained, regardless of the trial court's reasons in the premises; and the question whether, upon a sufficient complaint, the trial court would have had jurisdiction to grant the temporary writ at the time it was requested, is moot.

1 Reported in 147 N. W. 959.

Note. The authorities on the question of perjury as ground for relief against judgment are reviewed in notes in 10 L.R.A. (N.S.) 216; 23 L.R.A. (N.S.) 564. and 25 L.R.A. (N.S.) 574.

Action in the district court for Ramsey county to enjoin the enforcement of a judgment against plaintiff, and to satisfy the same of record. From an order, Catlin, J., denying plaintiff's motion for an injunction, plaintiff appealed. Affirmed.

William G. White and Harvey E. Hall, for appellant.

A. J. Hertz and James E. Markham, for respondent.

PHILIP E. BROWN, J.

Appeal by plaintiff from an order denying an application for a temporary injunction, based upon the records, files and complaint in the action. By the latter plaintiff seeks to restrain the enforcement of a judgment rendered against it in the district court of Ramsey county, upon an insurance beneficiary certificate, wherein it was defendant and the present defendant plaintiff; the gravamen of the pending action being that on the two trials of the former action defendant herein testified falsely upon a material issue, solely whereby the judgment was procured. The order appealed from, after formal recitals, concludes as follows:

"William G. White appearing for the plaintiff and A. J. Hertz thereupon appearing specially on behalf of defendant for the purpose only of moving the court to discharge said order to show cause on the ground that the court had no jurisdiction of the defendant, no summons having been served upon the defendant, and after hearing the respective counsel and on the records and files in said case (the italics are ours) it is hereby ordered, that plaintiff's said motion be and the same is hereby denied and said order to show cause be and the same is hereby in all things discharged."

Plaintiff contends the court erred therein, because it appears that the merits of its application were not considered or passed upon by the trial court, its motion having been disposed of on the jurisdictional grounds assigned on the special appearance, namely, because defendant had not been served with summons. It may be conceded that if such were the case the order was erroneous, under the rule in Cornish v. Coates, 91 Minn. 108, 97 N. W. 579, wherein it is held that a party is entitled to have his motion, if properly made, heard and determined on the merits. The order cannot be so construed, but, on

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the contrary, states that relief was denied "on the records and files in said case;" thus affirmatively showing it was made upon the merits. We are not advised what the court's views were on the question raised by the attorney appearing specially, and they are of no consequence in view of the fact that the order appears to have been made upon the merits. As remarked by Mitchell, J., in Moquist v. Chapel, 62 Minn. 258, 261, 64 N. W. 564, 567: "It is the decision of the court, and not his reasons for it that is here for review." See also Dunnell, Minn. Prac. § 1865. Had the court assigned an erroneous reason for its decision, such would not avail plaintiff, the rule in this court being settled that an order, otherwise right as a matter of law, is not reversible because the reasons assigned therefor are wrong. Kipp v. Clinger, 97 Minn. 135, 140, 106 N. W. 108. We are, therefore, brought to a consideration of the sufficiency of the complaint as the foundation of the application. This court has frequently held that an action cannot be maintained to set aside a judgment claimed to have been procured by means of perjury on allegations upon issues of fact so defined that each party must have known therefrom what the other party would attempt to prove. Hass v. Billings, 42 Minn. 63, 43 N. W. 797; Hayward v. Larrabee, 106 Minn. 210, 118 N. W. 795, 130 Am. St. 606, 16 Ann. Cas. 259; Major v. Leonard, 115 Minn. 439, 132 N. W. 915; McElrath v. MeElrath, 120 Minn. 380, 384, 139 N. W. 708, 44 L.R.A. (N.S.) 505. The complaint is within the rule, and states no cause of action. Hence the order was right in any event, and the question whether, upon a sufficient complaint, the trial court would have had jurisdiction to grant the temporary injunction, is moot.

Order affirmed.

NICHOLAS STEIN v. CLARKE WAITE and Another.1

June 19, 1914.

Nos. 18,749--(244).

authority to find purchaser not authority to make contract of

An agreement in writing between the owner of lands and a real estate broker, authorizing him to find a purchaser upon stated terms, and agreeing upon the commissions to be paid, does not authorize the broker to enter into a contract of sale binding upon the owner; and the contract involved is construed to be a contract to find a purchaser.

Action in the district court for Stearns county against Clarke Waite and Ida Waite, his wife, to obtain specific performance of a certain agreement and to reform its terms. The case was tried before Parsons, J., who, at the close of plaintiff's case, denied defendants' motion to dismiss the action and made findings and ordered judgment reforming the agreement in certain respects but denied its specific enforcement. From an order denying his motion for a new trial, plaintiff appealed. Affirmed.

R. B. Brower, for appellant.

J. D. Sullivan, for respondents.

DIBELL, C.

This is an action to reform and specifically enforce a contract to convey certain lands in Stearns county. There were findings and conclusions directing a reformation but refusing specific performThe plaintiff appeals from the judgment.

ance.

The contract which, as reformed, it is sought specifically to enforce was executed by one Julia A. Wright, a real estate broker, purport

1 Reported in 148 N. W. 49.

Note. The question of the power of a real-estate broker to make contract of sale is treated in notes in 17 L.R.A. (N.S.) 210 and 23 L.R.A. (N.S.) 982.

ing to act in behalf of the defendant Clarke Waite. We assume, without consideration, that this contract was sufficient in substance and execution to satisfy the statute of frauds, and pass directly to a consideration of the contract between Mrs. Wright and Waite.

The contract between Mrs. Wright and Waite was in writing. It was lost. The court finds its substance, omitting the description of the lands, as follows:

"That thereafter and in the month of October, 1911, the defendant, Clarke Waite with his then wife, one Mary Waite, who died subsequently, on April 9, 1912, made, executed and delivered to one Julia A. Wright, of the City of St. Cloud, in said county and state, a certain contract in writing, whereby they listed with the said Julia A. Wright the said lands hereinabove set forth for sale at fifty dollars per acre, and provided that not less than three thousand dollars should be paid down and the balance draw interest at the rate of six per cent per annum, with a commission of five per cent to the said Julia A. Wright in case she effected a sale. That the said Clarke and Mary Waite did not in and by said contract stipulate or agree to and with the said Julia A. Wright that the said Julia A. Wright should have, or did possess, the power or authority to sell the said real estate."

Under this finding the land was simply listed with the plaintiff, as a real estate broker, to find a purchaser. It was not intended that she should have authority to bind the defendant by an agreement to sell or convey. The distinction is clear. Instances where the contract between the owner and broker is such that the broker may bind the owner by a contract of sale are found in Peterson v. O'Connor, 106 Minn. 470, 119 N. W. 243, 130 Am. St. 618; Jackson v. Badger, 35 Minn. 52, 26 N. W. 908; Minor v. Willoughby & Powers, 3 Minn. 154 (225). Instances where the broker is without authority to bind the owner by a contract to convey, though he may have earned his commissions, are found in Larson v. O'Hara, 98 Minn. 71, 107 N. W. 821, 116 Am. St. 342, 8 Ann. Cas. 849; and Stillman v. Fitzgerald, 37 Minn. 186, 33 N. W. 564.

A number of cases from other jurisdictions are cited in Larson v. O'Hara, but we need not review them. It is very clear that the