seem that there is some merit in his claim. The point is made that the judgment as entered bars this adverse title, and is therefore erroneous. We are of the opinion that the point is well taken. See Hefner v. Northwestern, 123 U. S. 747, 8 Sup. Ct. 337. Under the circumstances, the judgment should have barred the defendants and all others claiming under them, since the filing of the notice of lis pendens herein, of all interests, rights, liens, and claims held by the mortgagors at the time of the execution of the mortgage, or derived from them since, or else the adverse claim of Betcher should have been expressly excepted from the effect of the judgment. The case should be remanded to the court below, with directions to modify its judgment in conformity to this opinion.

It is so ordered.

An application for reargument having been made, the following opinion was filed on December 6, 1897.

CANTY, J.

Respondent, in his petition for reargument, claims that, as Betcher went into possession under the title on which plaintiff is now attempting to foreclose, Betcher is, while he continues in possession, estopped from asserting his adverse title; and that therefore, as the parties have voluntarily litigated this adverse title, respondent is entitled to judgment forever barring it. Conceding, without deciding, that Betcher is estopped from asserting his adverse title in this action, it does not follow that plaintiff can permit him so to assert it, and then, by means of such estoppel, deprive him of it. The estoppel is against Betcher's asserting it in this action, not against his continuing to hold it; and plaintiff cannot use such doctrine of estoppel as a means by which to hold Betcher up, and deprive him of that title.

The petition for a reargument is denied.

FREDERICK E. RICE v. LONDON & NORTHWEST AMERICAN MORTGAGE COMPANY, Limited.1

November 10, 1897.

Nos. 10,733-(110).

Accord and Satisfaction.

An agreement to accept a less sum in satisfaction of a contingent or uncertain claim for a greater sum is not without consideration.

Same What Constitutes.

It being supposed that the estate of the intestate was insolvent, a creditor (whose claim was reduced to judgment) accepted an amount less than his claim in full satisfaction thereof. Held, there was sufficient consideration for such accord and satisfaction, even though it turns out that the estate is not insolvent.

Henry W. Carter died intestate October 14, 1893, and respondent was appointed his administrator by the probate court for Ramsey county. On November 8, 1893, appellant obtained in the district court for that county the judgment mentioned in the opinion. Appellant's claim against the estate having been allowed as stated in the opinion, the administrator appealed to the district court. From an order of the district court, Otis, J., reversing the judgment of the probate court, the mortgage company appealed. Affirmed.

William G. White, for appellant.

Horton & Denegre, for respondent.

CANTY, J.

The intestate, Carter, was in his lifetime a member of the "Oak View Syndicate," an association of individuals who owned some land. They sold a tract of land to a third party, and received his note, secured by a mortgage, for a part of the purchase price. They sold this note and mortgage to the appellant mortgage company and each of them indorsed this note as an individual. Nearly a month after the death of Carter appellant obtained judgment against him and his associates for the sum of $2,035.68. (Whether the action was commenced in the lifetime of Carter does not appear.) Pay1 Reported in 72 N. W. 826.

ments were made on this judgment, presumably by the other members, until the balance remaining unpaid was $1,014.76, and thereafter, on March 3, 1894, a claim was filed in the probate court against Carter's estate for this balance. The time to file claims against said estate did not expire until the first Monday in June, 1894.

The court below finds that prior thereto, on May 22, 1894, the administrator of said estate paid to appellant

"The sum of $103.28, in full payment, accord and satisfaction of the aforesaid claim against the estate of said intestate, which sum was then and there received and accepted by said mortgage company, in full discharge, acquittance, and satisfaction thereof."

We are of the opinion that this finding is supported by the evidence and that there was sufficient consideration to support the agreement to pay and accept the $103.28 in full discharge of the claim against the estate. It is well settled that the payment of a lesser sum in satisfaction of a greater sum which is liquidated, and which the party making the payment is absolutely and uncondi tionally required to pay, is only a payment pro tanto, and not a sufficient consideration for the total satisfaction of the greater sum. But, while this claim was liquidated, neither the administrator nor the estate which he represents was absolutely and unconditionally required to pay it. The estate might be insolvent, and from the admissions of the parties the estate appeared at the time to be insolvent, and the parties supposed that it was, although, on account of subsequent developments, it now appears that it was not. If the estate was insolvent, the appellant would have to exhaust its mortgage security before it could participate in the funds in the hands. of the administrator (G. S. 1894, § 4529); and this would render its claim on those funds still more contingent and uncertain. There was at the time good reason to suppose that the estate was insolvent, and, if there was then a good consideration for the agreement of accord and satisfaction, such subsequent developments will not destroy that consideration. If appellant's claim on the funds in the hands of the administrator appeared at the time to be contingent and uncertain, there was sufficient consideration for its acceptance

of a less sum in satisfaction thereof, as it would have the latter sum absolutely and without any contingency or uncertainty.

The judgment appealed from is affirmed.

ALBERT H. KLEVEN v. GREAT NORTHERN RAILWAY COMPANY.1

November 10, 1897.

Nos. 10,831-(55)..

Common Carrier Ejection of Passenger-Excessive Damages. Plaintiff, a passenger on defendant's train, was wrongfully ejected therefrom because of certain suspicious defects in his ticket. The ticket was in fact valid, and appeared on its face to be; but there was no evidence which would warrant the jury in finding that in ejecting him the conductor acted maliciously, or with any such wanton disregard of plaintiff's rights as would justify any award of punitive damages. He was ejected in the morning, without force, purchased a ticket, and rode to his destination on another train the same evening. Held, a verdict of $225 as damages for such ejection is excessive, and the highest amount for which the verdict can be allowed to stand is $125.

Appeal by defendant from an order of the district court for Polk county, Ives, J., denying a motion for a new trial, after a verdict for plaintiff for $225. Affirmed on condition.

William R. Begg, for appellant.

The time limit upon the return ticket bought by the plaintiff was a reasonable and valid limitation, and was binding upon both the plaintiff and the defendant. Elmore v. Sands, 54 N. Y. 512; Missouri v. Murphy (Tex. Civ. App.) 35 S. W. 66; McGhee v. Drisdale, 111 Ala. 597; Grogan v. Chesapeake, 39 W. Va. 415; State v. Campbell, 32 N. J. L. 309; Boston v. Proctor, 1 Allen, 267; Barker v. Coffin, 31 Barb. 556; Boice v. Hudson, 61 Barb. 611; Shedd v. Troy, 40 Vt. 88; Dietrich v. Pennsylvania, 71 Pa. St. 432; MacKay v. Ohio, 34 W. Va. 65; Lillis v. St. Louis, 64 Mo. 464; McClure v. Philadelphia, 34 Md. 532; Farwell v. Grand, 15 Up. Can. C. P. 427.

1 Reported in 72 N. W. 828.

As between the conductor and the passenger upon the train, the ticket is conclusive as to the rights of the passenger upon the train, and where the ticket offered is defective, it is the conductor's right and duty to demand payment of fare, and upon the passenger's refusal to pay fare to eject him from the train. Frederick v. Marquette, 37 Mich. 342; Townsend v. New York, 56 N. Y. 295; Yorton v. Milwaukee (Wis.) 11 N. W. 482; Krueger v. Chicago, 68 Minn. 445; Chicago v. Griffin, 68 Ill. 499; Petrie v. Pennsylvania, 42 N. J. L. 449; Dietrich v. Pennsylvania, 71 Pa. St. 432; Poulin v. Canadian, 3 C. C. A. 23; Shelton v. Lake, 29 Oh. St. 214; Hall v. Memphis, 15 Fed. 57; Baggett v. Baltimore, 3 D. C. App. 522; Western v. Stocksdale, 83 Md. 245; Pullman v. Reed, 75 Ill. 125; Ray, Neg. Imp. Dut. (Passenger) § 60, and cases cited. To make the ejection wrongful, the defect in the ticket must have been due to the negligence of some agent of the railway company in selling the same, stamping it, punching it, or performing some similar act. In order to recover the plaintiff must show either that he offered a valid ticket for his passage or that the defect in the ticket was due to defendant's neg ligence. Jerome v. Smith, 48 Vt. 230; Ripley v. New Jersey, 31 N. J. L. 388; Crawford v. Cincinnati, 26 Oh. St. 580.

The damages awarded in this action are excessive. Pine v. St. Paul, 50 Minn. 144; Finch v. Northern, 47 Minn. 36; Carsten v. Northern, 44 Minn. 454; Gillan v. Minneapolis, 91 Wis. 633; Hansley v. Jamesville, 115 N. C. 602; Louisville v. Breckinridge, 99 Ky. 1.

H. Steenerson, for respondent.

The point that the limitation upon the ticket was reasonable and valid has no relevancy. Krueger v. Chicago, 68 Minn. 445.

One who has taken his chances of advantage in cross examination has not, when he finds the direct testimony prejudicial, the legal right to exclude it. Coit v. Waples, 1 Minn. 110 (134); Weide v. Davidson, 15 Minn. 258 (327); 3 Jones, Ev. § 898; Levin v. Russell, 42 N. Y. 251. Carsten v. Northern, 44 Minn. 454, holds that the avoidance by plaintiff of personal violence by nonresistance does not deprive him of his right of action. Krueger v. Chicago, supra. CANTY, J.

Plaintiff purchased of defendant at Crookston a ticket for passage