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REHEARINGS DENIED

[Cases in which rehearings have been denied, without the rendition of a written opinion, since the publication of the original opinions in previous volumes of this Reporter.]

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Halligan v. Frey, 141 N. W. 944.

Mitchell v. Des Moines City R. Co., 141 N. W. 43.

Scott v. Stewart, 140 N. W. 421.
State v. Krampe, 140 N. W. 898.
State v. Lindsay, 140 N. W. 903.
State v. Sego, 140 N. W. 802.
Sullivan v. Herrick, 140 N. W. 359.

Wendt v. Foss, 140 N. W. 881.
Wheeler v. McStay, 141 N. W. 404.
Wolf v. Ranck, 141 N. W. 442.

SOUTH DAKOTA.

Cornell v. Burr, 141 N. W. 1081.

WISCONSIN.

American Thresherman, The, v. De Tamble Motors Co., 141 N. W. 210.

Hunt v. Waterloo, C. F. & N. R. Co., 141 N. Anderson v. Osceola Mill & Elevator Co., 141 W. 334.

N. W. 1005.

Lockridge v. Minneapolis & St. L. R. Co., 140 City of Superior v. Roemer, 141 N. W. 250.

N. W. 834.

Melody v. Des Moines Union R. Co., 141 N. W. 438.

Millard v. Bennett, 139 N. W. 914.
Millard's Estate, In re, 141 N. W. 1050.
Miller v. Baker, 140 N. W. 407.

Luebben v. Wisconsin Traction, Light, Heat & Power Co., 141 N. W. 214.

O'Toole v. Duluth, S. S. & A. R. Co., 140 N. W. 293.

Smith v. Winnebago Realty Co., 140 N. W. 327.

See End of Index for Tables of Northwestern Cases in State Reports

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THE

NORTHWESTERN REPORTER

VOLUME 142

FRYBERGER et al. v. ANDERSON et al. (Supreme Court of Minnesota. June 6, 1913. On Motion for Reargument, June 24, 1913.)

(Syllabus by the Court.)

TRUSTS (8 303*)-DISTRIBUTION OF TRUST
ESTATE BASIS FOR DISTRIBUTION OF TRUST
ESTATE APPROVED.

for deceit in his purchase of their stock, brought actions or asserted claims. Mr. Fryberger appeared for them and claims one-half of the recovery as his agreed compensation.

On November 25, 1911, after 32 years of substantially continuous litigation of a diffiCult character, an agreement of settlement was made with Turnblad, who paid $20,000 and turned over 4,332 acres of land in Pine In an action by the plaintiffs, trustees un-county. The plaintiffs took the money and der a trust agreement, against the beneficiaries, to determine the proper distribution the land under a formal trust agreement. of certain money and lands, the subject of the No one objects to the settlement. trust, resulting from the settlement of certain litigation, the evidence is examined, and it is held that it supports the findings of the court and that the court adopted the proper basis of distribution.

The plaintiffs bring this action to have determined the proper distribution. The court made findings of fact and conclusions of law, determining how the distribution should

[Ed. Note.-For other cases, see Trusts, be made. The defendant Ekberg, individuCent. Dig. § 420; Dec. Dig. § 303.*]

Appeal from District Court, Hennepin County; Horace D. Dickinson, Judge.

Action by H. E. Fryberger and others From against Swan Anderson and others. denial of a motion for new trial, defendant Ekberg appeals. Affirmed.

Olof L. Bruce, of Minneapolis, for appellant. H. E. Fryberger, of Minneapolis, for trustees. A. B. Darelius and L. K. Eaton, both of Minneapolis, for respondents.

ally and as trustee, he holding certain claims for the benefit of others, appeals from the order denying his motion for a new trial.

The motion, so far as it is based upon misconduct, accident, or surprise, is entirely without merit, and requires no discussion.

In appellant's brief seven claims are made and argued at length.

1. The first claim is that the fourth finding, wherein the court finds that there was a substantial agreement between the parties as to the division of the money and propEk-erty, is not supported by the evidence. think the evidence is ample. If the finding

DIBELL, C. In 1908 the defendant berg began an action against Swan J. Turn

blad and others, on behalf of the SwedishAmerican Publishing Company, and in his own behalf, he claiming to be a stockholder of the company, for an accounting, and for other relief. The nature of the action may be ascertained by a reference to 114 Minn. 196, 130 N. W. 1029.

The plaintiff Fryberger was the attorney of Mr. Ekberg under an agreement, dated March 30, 1908, whereby he was to have onethird of the recovery, should there be one, otherwise nothing, and Mr. Ekberg was to pay the expenses. Mr. Fryberger claims that by a subsequent agreement, contemplating further litigation, his compensation was increased to one-half.

Other persons, having or claiming to have stock in the publishing company, or having or claiming to have claims against Turnblad

We

were without support, or were omitted, the result would not be different.

2. The second claim is that the court erred

in finding that the contract between Mr. Fryberger and Mr. Ekberg, of March 30, 1908, was modified or changed so as to include further litigation and give additional contingent compensation. A finding to the contrary would be against the evidence.

3. The third claim is that the finding that Mr. Ekberg was not to have any portion of the compensation earned by Mr. Fryberger under his contracts with certain claimants, who had, or claimed to have, causes of action against Turnblad for false representations in the purchase of their stock, is not justified by the evidence. The evidence justifies the finding.

4. The fourth claim is that the finding that

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

settled. tion.

A. P. Peterson belonged to the class of claim- by this court. The rights of all are definitely ants having claims against Turnblad for deNow there should be a distribuceit, for the recovery of which Mr. Fryberger was to have one-half, is not supported by the evidence. We think it is.

5. The fifth claim is that Mr. Fryberger should not be allowed one-half of the judgment of $2,000 for costs in the Supreme Court. Whatever might have been the merit of Mr. Ekberg's claim, as an original proposition, he has put himself in such a position by his practical construction of the contract, and by the statements which he made and the various papers which he signed and verified, that he cannot now complain of the finding of the court dividing the judgment.

6. The sixth claim is that Mr. Fryberger should pay all of the compensation of additional counsel whom it was thought advisable to employ. They were paid $2,000. The evidence justifies a finding that an equal division was contemplated; and in any event what is said about the conduct of Mr. Ekberg relative to the judgment of $2,000 applies here.

Mr.

7. The seventh claim is that the court erred in making the division of the trust property. For purposes of distribution the Pine county lands were valued at $26,000. This made the total fund $46,000. Mr. Fryberger's claim was valued at $22,600. This was in accordance with the agreement which he had with Mr. Ekberg and various other parties. Ekberg's claim was valued at $12,975. valuation of all the other claims was made. The total valuation equaled the total of the fund. Each claimant was given 43.5 per cent. of his claim in cash and 56.5 per cent. in land, these percentages representing substantially accurately the relative proportions of cash and land to the total valuation.

A

We have gone over a mass of detail covering 1,000 pages of paper book and briefs. We are satisfied that the court reached a substantially correct conclusion. Mr. Ekberg has over and over expressed his satisfaction with the division. His complaint has been as to the allowance to those for whom he is trustee. It is apparent that there is no considerable dissatisfaction among the small claimants. No one has been wronged.

The controversy over the division of the trust fund is unfortunate, and this appeal was ill-advised. It has been harassing to the respondents, and necessarily expensive and profitless to Mr. Ekberg and the small claimants whom he represents. It is now five years since the litigation commenced. It is a year and a half since the fund was in the hands of the trustees for distribution. Mr. Ekberg has had a consideration of his claims by the trial court, and now a review

Order affirmed.

HOLT, J., took no part.

On Motion for Reargument. PER CURIAM. There is $46,000 for distribution, $20,000 in cash and $26,000 in land. Each claimant should have 20000/40000 of his claim in cash and 26000/460 6000 in land.

In their computations the parties have taken 43.5 per cent. as representing the cash, and 56.5 per cent. as representing the land, which are substantially the correct percentages, and we adopt them in making our computations.

Mr. Fryberger's total claim was allowed at $21,600.

Mr. Ekberg's total claim was allowed at $13,975.

Mr. Fryberger should have $9,396 in cash. Mr. Eckberg should have $6,079 in cash. From Mr. Fryberger's $9,396 should be deducted $1,000, which is one-half of the additional counsel fees paid by the trustees, and which he should pay, and the further sum of $4,000 heretofore paid him, leaving $4,396. To this sum there should be added $1,000, which is one-half of the $2,000 Supreme Court judgment for costs, which was retained by Mr. Ekberg, and is not claimed to be a part of the fund for distribution; this sum of $1,000 being taken from Mr. Ekberg's cash, making a total of $5,396.

From Mr. Ekberg's $6,079 should be deducted $1,000, which is one-half of the additional counsel fees, paid by the trustees, and which he should pay, and $1,000, one-half of the $2,000 Supreme Court judgment received by him, which $1,000 is to be paid to Mr. Fryberger, leaving Mr. Ekberg's total cash $4,079.

The land should be divided upon the same plan, though upon a different percentage basis. The claims of the other claimants should be adjusted on the same basis.

The rather uncertain amended findings, at page 550 of the supplemental paper book, and the seventh paragraph of the opinion, may have led to some confusion. We construe the findings and conclusions to bring the result we have stated. If so, they are correct.

The findings and conclusions support a judgment for distribution along the lines indicated, and we do not see that they support any other. Counsel may have a misunderstanding, but they are hardly in dispute.

The controversy should be ended. With the detailed explanation, no reargument is necessary, and it is denied.

Company. From an order sustaining a deSULLIVAN et al. v. MINNEAPOLIS & R. murrer to the complaint, plaintiffs appeal.

R. RY. CO.

(Supreme Court of Minnesota. May 29,

1913.)

(Syllabus by the Court.)

1. COMMERCE (§ 33*)-INTRASTATE SHIPMENTS INTERSTATE COMMERCE ACT APPLICA

TION.

The jurisdiction of the state courts of an action by a shipper against a common carrier for damages resulting from unlawful discrimination against him in rates is not affected by the provisions of the federal Interstate Commerce Act (Act Feb. 4, 1887, c. 104, 24 Stat. 379 [U. S. Comp. St. 1901, p. 3154]), where the shipments involved are within points within the state and the transportation is wholly therein; and where such appears from the complaint a demurrer for lack of jurisdiction by reason of such act should be overruled, especially where there is no suggestion in the complaint that the defendant was ever engaged in interstate commerce, or that its road is so situated as to enable it to engage therein.

Reversed.

George H. Spear, of Duluth (Kingman & Wallace, of Minneapolis, of counsel), for appellants. Powell & Simpson, of Minneapolis (E. C. Carman, of Minneapolis, of counsel), for respondent.

PHILIP E. BROWN, J. Appeal by the plaintiffs from an order sustaining a demurrer to the complaint.

Two causes of action are attemped to be stated therein, the first of which is, in substance, that the defendant, a Minnesota corporation, is, and was at all times referred to, engaged as a common carrier in operating a railway extending north from a certain station known as Mississippi River, in Itasca county; that during the times stated the plaintiffs and an Illinois corporation known as the Itasca Lumber Company were logging in certain territory served by the defendant as a common carrier, the plaintiffs and the Itasca Lumber Company being competitors, each shipping large quantities The modern common law imposes upon of logs over the defendant's railway to its common carriers the duty of equality in freight rates to all shippers similarly circum-terminus at Mississippi River, in the course stanced, for the transportation of the same of which, between December 1, 1909, and class of goods the same distance; and our January 1, 1911, the plaintiffs shipped over statutes prohibiting such discrimination are declaratory of the common-law rule. [Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 21-24, 901-905; Dec. Dig. 88 13. 199.*]

[Ed. Note.-For other cases, see Commerce, Cent. Dig. §§ 26, 81; Dec. Dig. § 33.*]

2. CARRIERS (§§ 13, 199*)-RATES-DISCRIMI

NATION.

3. CARRIERS (§ 201*)

DISCRIMINATION IN RATES-DAMAGES RIGHT OF ACTION. The shipper's common-law right of action for damages for discrimination in rates is not taken away by our rate-regulating statutes, which furnish no civil remedy to the shipper

therefor.

[Ed. Note.-For other cases, see Carriers, Cent. Dig. 88 906-915; Dec. Dig. § 201.*] 4. CARRIERS (§ 201*) DISCRIMINATION IN RATES-COMMON-LAW REMEDY.

The shipper would have such a right of action, even though the statutory prohibition of discrimination in rates were deemed to create a new obligation on the part of the carrier; no civil remedy being provided thereby. [Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 906-915; Dec. Dig. § 201.*] 5. CARRIERS (§ 201*) DISCRIMINATION IN RATES-MEASURE OF DAMAGES-RIGHT OF RECOVERY.

the defendant's road, from points in the state to Mississippi, several million feet of logs, paying the defendant therefor its regularly established and published rate of $2 per 1,000 feet, and believing, in so doing, that this represented the charge made by the defendant as against the public in general and all parties similarly situated with the plaintiffs; that during the same period the Itasca Lumber Company also shipped, and the defendant carried for it as a common carrier, large quantities of logs the same or a greater distance than that covered by the plaintiffs' shipments, the service thus rendered to the plaintiffs and the Itasca Lumber Company being like and contemporaneous; that the defendant transported the logs of the latter under the same conditions, except as to rates, as those of the former, but that the Itasca Company paid the defendant, and it accepted for the service so rendered, the sum of $1.50 per 1,000 feet of logs, thereby giving such company an unlawful preference over the plaintiffs and unlawfully subjecting them to an unreasonable prejudice, and thus unlawfully and unjustly discriminating against the plaintiffs in collecting and receiving from the Itasca Company a less compensation for services in transporting the logs than the regularly established schedule rates and charges enforced by the defendant as a common carrier against the public in general and these plaintiffs in particular, for like and Action by J. C. Sullivan and others against contemporaneous service in transporting logs; the Minneapolis & Rainy River Railway and that by reason of all of the facts alleg

In such an action, whether based upon the common-law or the statutory duty not to discriminate in rates, the shipper may recover the difference between the charges exacted of him and those accepted from the most favored shipper; and though the rates charged the plaintiff were those established by law, such a recovery neither compels the defendant to commit a second wrong nor in any way affects the legally established rates.

[Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 906-915; Dec. Dig. § 201.*] Appeal from District Court, Itasca County; C. W. Stanton, Judge.

ed "the plaintiffs have suffered damages in the sum of $4,556.24."

The second cause of action is substantially a repetition of the first, except that the subjects of the shipment alleged consisted of lumbering supplies, horses, feed, etc., and the defendant is charged with having carried those of the Itasca Company for nothing, while the plaintiffs were compelled to and did pay the regular established rates, aggregating about $800, for which the plaintiffs also demand judgment.

The grounds for the demurrer are: (1) That the court was without jurisdiction; and (2) that the complaint does not state a cause of action. It does not appear on what theory the court based its ruling.

[1] 1. It is unnecessary, we think, to go into any extended discussion of the first ground of demurrer. The shipments involved in both causes of action were between points within the state and the transportation was wholly therein. Moreover, there is no suggestion in the complaint that the defendant was ever engaged in interstate commerce, or that its road is so situated as to enable it to engage therein. Under these circumstances the shipments must be deemed to have been intrastate, and the federal act has no application. The demurrer cannot be sustained upon the first ground.

cause of the paucity of early English cases upon the common-law rule as to discrimination in tolls, which latter is not surprising, when we consider that the first common carriers were individuals whose fields of operation were of necessity extremely limited, and that they were many in number, performing services in various portions of the country and under widely differentiating circumstances. Under such a condition of affairs, and, moreover, when the doctrine of equal rights to all was in its infancy, and when competition, which makes special privilege almost necessarily disastrous to the disfavored party, may almost be said to have been nonexistent, it is not at all strange that the conception of a fixed and equal charge to every man for the same service remained undeveloped. In England legislation establishing equality in railroad rates came so soon after the advent of railroads that there was slight occasion for the courts there to examine into the common law of the subject independently of statute. See Scofield v. Railway Co., 43 Ohio St. 571, 598, 3 N. E. 907, 54 Am. Rep. 846.

But later, when the question of the true common-law rule became of prime importance, further investigation brought to light broader principles. Said Mr. Justice Doe in McDuffie v. Portland, etc., R. Co., 52 N. H. [2] 2. The questions raised by the general 430, 455, 13 Am. Rep. 72: "It seems to be demurrer are: (1) What is the common-law supposed that, at common law, common carduty of a common carrier to shippers sim- riers are not bound to carry all and for all ilarly circumstanced, with reference to equal- on reasonably equal terms. * The ity of charges for the carriage of the same principal English cases usually cited are class of goods the same distance? (2) Has a [citing many cases]. These cases seem to be shipper, discriminated against under such based on statutes general or special. The circumstances, any right of action for dam- English Parliament has been extremely vigages at common law; and, if so, what is the ilant and industrious in putting, in the charmeasure of his recovery? (3) What is theters of corporations, provisions for the proeffect of our statutes relating to the regu-tection of the rights of individuals and the lation of railroad rates upon the questions public. Out of abundant caution, and for the here involved?

(1) While discrimination by railroads as to shipping facilities has been recently condemned by this court, through Chief Justice Start, in Banner Grain Company v. Great Northern R. Co., 119 Minn. 68, 137 N. W. 161, 41 L. R. A. (N. S.) 678, the questions above stated have not been considered. Look ing backward from the present viewpoint at the course of events, and had we no precedents to consider, no difficulty would, we think, be encountered in their determination; but, either fortunately or unfortunately, as it may be regarded, there is a wealth of authority upon the subjects involved, and our first effort will be to extract the common-law rule therefrom.

The earlier cases, of which Johnson v. Pensacola, etc., R. Co., 16 Fla. 623, 26 Am. Rep. 731, is an example, declared that a common carrier performed its full commonlaw duty when it served all alike in the matter of facilities for a reasonable compensation. This view probably originated be

*

information of those specially concerned,
and to guard against any possible construc-
tion by implication repealing the common
law, they affirmed some of its simplest rules.
Sandford v. Railroad Co., 24 Pa. 378 [64 Am.
Dec. 667].
And the practice of the
English courts, on charters and general acts
of this kind, has been so long continued that
the fact seems now to be overlooked that
the general principle of equality is a prin-
ciple of the common law.
It seems

to have been a result of the anxiety of
Parliament that, instead of merely providing
such new remedies and modes of judicial
procedure as they deemed necessary for the
enforcement of the common law, they re-
peatedly re-enacted the common law, until
it came to be supposed that, in such an im-
portant matter as the public service of trans-
portation by common carriers, the public
were indebted, for the doctrine of equal
right, to the modern vigilance of Parliament,
instead of the system of legal reason which
had been the birthright of Englishmen for

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