G. D. Emery, for appellant, D. M. Osborne & Co. V. B. Seward, for respondent, Charles Marks.

GILFILLAN, C. J. Action on a promissory note for $125, dated July 19, 1880, due November 1, 1882. Answer: that the note, with two others which have been paid, to the amount of $212.03, were given for the price of a harvester and binder, sold July 19, 1880, by plaintiff to defendant, with this written warranty: "All our machines are warranted to be well built, of good material, and capable of cutting, if properly managed, from 10 to 15 acres per day. If, on starting a machine, it should in any way prove defective and not work well, the purchaser shall give prompt notice to the agent from whom he purchased it, and allow time for a person to be sent to put it in order. If it cannot then be made to do good work the defective part will be replaced, or the machine taken back and the payment of money or notes returned. Keeping the machine during harvest, whether kept in use or not, without giving notice as above, shall be deemed conclusive evidence that the machine fills the warranty."

The breach alleged is that the machine was not well built nor of good material, and would not under any management cut more than five or six acres per day; that it proved defective and would not work well at all, of which defendant forthwith notified plaintiff's agent, who tried, but failed to make it work; that plaintiff refused and neglected to repair it or replace the defective parts, and refused to take it back and return to defendant the money paid and notes given by him; and that the machine was never of any value whatever. Damages to the amount of $497 are alleged, for which judgment in favor of defendant is demanded. The reply takes issue on the alleged breach of warranty and damages, and alleges that August 7, 1882, the defendant, in consideration of an extension by it of the time for payment of one of the notes (not that in suit) given for the price of the machine, the defendant, in writing, released it from the warranty, and all claims arising out of the same.

Some of the points made by appellant require a construction of the warranty in respect to notice of the machine not working well. As to that it claims that the first harvest was to fix and determine whether the warranty was satisfied or not, and after that time no complaint or notice (no matter, as we understand it, how many times complaint had been made and notice given during the first season, if, whenever notified, during that season it fixed the machine so that it would work) could change or vary the fixed rights of the appellants under the contract. Ordinarily, any defect in the machine within the terms of the warranty, existing at the time of the sale, no matter when discovered, (certainly if within a reasonable time,) would be a breach. The warranty in this case modifies this rule. It is in effect an agreement that if the machine should, during the first season, work as warranted, that should be taken as conclusively showing it to be as warranted, and that a failure during that season to give notice of defects should be taken as conclusive evidence that the machine worked as warranted, and that in case of notice the appellant should have a reasonable opportunity to cure the defects. Though, upon a strict construction of the terms, notice is required only when, (at any time during the first season,) it should be first discovered that the machine failed to work, leaving it for appellant, on that notice, to ascertain wherein the defects lay and correct them, if they could be corrected, or be liable on its warranty, if it failed so to do. A more liberal and probably the proper construction is that, after a first attempt by appellant upon notice to correct defects, the respondent was to give the machine a reasonable trial; and if upon such trial it failed, to give appellant reasonable notice thereof. But it would be going beyond not only the strict terms but the spirit of the warranty to hold that during the entire first season the respondent should be repeatedly giving notice and repeatedly giving appellant opportunity to tinker at the machine and try to make it work, and that if respondent kept it over that sea

son, even though appellant failed to permanently cure the defects, it should be conclusively taken to fill the warranty.

We think there was evidence on the trial to show that respondent did as much as the warranty required of him, and that the first season's trial showed a breach of the warranty. It tends to show that when first set to work in the field by appellant's agent, it worked badly; that he finally got it to work very well; that the next day it failed again, and, after two or three days trying it, respondent gave the agent notice, who succeeded in making it run a little better for a short time; but the next day it failed again, of which the respondent gave the agent notice, who, two or three days after, went with an expert and fixed it so that it worked for half a day, when it was as bad as ever. Respondent continued trying it to the end of harvesting. His harvesting took altogether 14 days, during which the machine cut about 100 acres, but little more than half what it ought to have cut, besides which it bound badly, and wasted more grain than it ought. Respondent worked it two seasons succeeding the first; but it never worked well except for a brief period after each time that the agent attempted to put it in condition. The evidence that the machine worked badly the second and third seasons, it being shown that it worked in the same way from the beginning, that it wasted grain, and to what extent it wasted, assuming it to have been due to defects in the machine, was proper to show that when sold the machine was not what it was warranted to be.

On the trial the appellant gave in evidence the written release pleaded in the reply. To this, respondent gave evidence tending to show that he could not read English well; that when appellant's agent came to him with papers to sign, on the date of the release, he told him he could not read English, and that he would have to take his word as to what the papers were; that the agent had only three papers for him to sign, of which the agent told him one was a note, one a chattel mortgage, and the third a notice to appellant to have a note extended; and that he signed the papers supposing them to be such. If the jury found this evidence to be true, then the signature was obtained by fraud, and the release was void. At the date of the release the respondent gave a new note in renewal of one of the original notes given for the price of the machine.

The appellant claims that by giving the new note, without reserving his claim for damages upon the breach of warranty, the respondent waived such claim. With respect to any mere defense to the original note, the renewal might be an absolute waiver, or, under some circumstances, an estoppel against asserting the defense. But it would not be so with a counter-cause of action, though arising out of the same transaction as the note. He might pay the note, or let judgment go against him upon it, and then bring suit on his counter-cause of action. One insuperable objection to holding that payment or renewal of the note would operate as a waiver or release of the counter-claim, where nothing was said about it, would be that such waiver or release requires a consideration to sustain it, and in such case there would be none. Undoubtedly, voluntary payment or renewal, without saying anything about a counter-claim growing out of the same transaction as the note, would be very strong evidence against the existence of the counter-claim, for such a course would not be in accordance with the usual conduct of men. But that is all that could be claimed for it.

So far as the foregoing matters are concerned, the rulings of the court below were correct. But upon some other matters, essential, though of minor importance, its rulings were erroneous. The general measure of damages upon such a warranty is the difference between the market value of the chattel, if it were such as it was warranted to be, and its market value as it actually was. After proving what the market value of the machine would have been if it had been as warranted, the respondent asked his witnesses what,

in its actual condition, was it worth as a harvester and binder. These questions were properly objected to, but admitted. Two objections are made, each well taken: First, that the witnesses were not shown to have sufficient knowledge of the market value of such machines to express an opinion; second, the questions are based on an improper rule of damages. The witnesses showed no other knowledge of the value than might be acquired from working the machine, or seeing it work. This might enable them to testify to its condition, but would not enable them to give an opinion of its market value. The questions were also bad because limited to the value for a specific purpose, when the inquiry should have been as to its market value generally. It was also proper to show, as appellant offered but was not permitted to do, that, when paying one of the notes given for the price of the machine, defendant made no objection to paying it, and made no complaint that the machine did not work well. It would have had some tendency to prove that he had no complaint to make. Order reversed.

WALDRON v. CITY OF ST. PAUL.
Filed January 10, 1885.

1. PRACTICE-CHANGE OF VENUE.

An action having been commenced in another county than that of the defendant's residence, the neglect of the defendant for seven months after the joining of issue to move for a change of venue, considered with other circumstances as justifying the court in refusing the motion, in view of the provisions of rule 21 of the district court, although plaintiff's attorney had, before the joining of issue, verbally agreed to stipulate that the venue be changed.

2. SAME-LACHES.

The denial of a motion after such laches for change of venue, on the ground of the convenience of witnesses, sustained.

3. SAME-DEPOSITIONS.

An error in a notice of the taking of a deposition, in the name of a witness proposed to be examined, held no ground for excluding the deposition, the adverse party having appeared and cross-examined the witness. Gen. St. 1878, c. 73, ¿ 39. 4. SAME-EVIDENCE-DAMAGES.

Evidence considered as to its admissibility, and as sustaining a recovery of damages for injuries caused by the negligence of a municipal corporation in respect to the condition of a sidewalk.

Appeal from an order of the district court, Hennepin county, denying new trial.

Woolley, Biddle & Reed, for respondent, Margaret I. Waldron. W. P. Murray, for appellant, city of St. Paul.

DICKINSON, J. Action to recover for personal injuries alleged to have been caused by a defective sidewalk in the city of St. Paul.

1. In commencing this action the plaintiff laid the venue or place of trial in the county of Hennepin. The defendant, a municipal corporation in the county of Ramsey, was entitled to have the action transferred to and tried in that county. Gen. St. 1878, c. 66, § 49. Before the expiration of the time for answering, a demand was made upon the plaintiff's attorney, as provided by statute, that the venue be changed. No application was made to the court for an order changing the venue until more than seven months after the making of the demand upon the plaintiff's attorney, nor until about seven months after issue was joined in the action. The application was then denied. This is now assigned as error. It appeared, by affidavits presented upon the hearing of the motion, that when service of the demand upon plaintiff's attorney was made, the latter stated that he was very busy and could not then wait to prepare and sign a stipulation for the transfer of the action, but that he would sign such a stipulation at any time, and that it was not necessary that a moion be made.

The cause was at issue, as we understand, prior to the May term of the court held in Hennepin county, but no proceedings were had in the action until some time prior to the October term in that county. It was then noticed for trial at that term on the part of the plaintiff. After such notice of trial the defendant made the motion referred to. Two terms of the court in Ramsey county had then passed (May and September terms) since the joining of issue, and another term would not convene in that county until January in the following year. The statute makes no provision as to the time within which application shall be made to the court for an order changing the place of trial in such cases; but by rule 21 of the district court it is provided that “a. change of venue or place of trial will not be granted unless the party applying therefor uses due diligence to procure the same within a reasonable time after issue is joined in the action, and the ground for the change shall have come to the knowledge of the applicant. Nor will a change be granted where the other party will lose the benefit of a term, unless the party asking for such change shall move therefor at the earliest possible opportunity after issue joined, and he shall have information of the ground of such change." The verbal agreement of the plaintiff's attorney, assuming it to have been made as alleged, was of no effect, and the court could not regard it or enforce it as an agreement or stipulation. Gen. St. 1878, c. 88, § 9; Wager v. Stickle, 3 Paige, 407. The court might, however, regard the alleged agreement when presented as an excuse for laches which had been induced thereby. Wager v. Stickle, supra. But, allowing consideration to be given to it for this purpose, the learned judge, to whose discretion the motion was largely addressed, was justified in concluding that the long delay of the defendant to proceed to secure a change of the place of trial, either by proper stipulation or by motion, was unexcused. To have allowed the motion at the time when it was made, would have postponed the trial to January and deprived the plaintiff of the benefit of the earlier trial, to which the latter part of the rule entitled her.

2. After the denial of the above motion, the defendant moved that the place of trial be changed for the convenience of witnesses. For the reasons already suggested, and in view of the terms of the rule, no abuse of discretion appears in the denial of this motion.

3. Before the trial, the plaintiff served notice, as required by statute, that the depositions of certain persons, one of whom was designated as "H. F. Ditto, would be taken in the state of Missouri. At the time and place indicated in the notice, the deposition of one Abraham F. Ditto was taken on the part of the plaintiff, counsel on the part of the defendant being present and cross-examining the witness. Upon the introduction of this deposition in evidence upon the trial, the defendant interposed objections on the ground that the notice designated H. F. Ditto as the person whose deposition was to be taken. The objection was properly overruled. The statute (chapter 73, § 39, Gen. St. 1878) declares that "no informality, error, or defect in any proceeding under this statute shall be sufficient ground for excluding the deposition, unless the party making objections thereto shall make it appear to the satisfaction of the court that * ** * such party was, by such informality, error, or defect, precluded from appearing and cross-examining the witness."

4. The testimony of the plaintiff's witness, Mary A. Wise, as to how long the broken plank described by her had been in the condition indicated, was admissible. Although she did not see the accident, the locality which she describes is very closely identified by her testimony with that where the accident occurred; and that the defect of which she testified was the defect to which the accident is ascribed, is sufficiently apparent from its similarity; from the fact shown that there was no other broken plank there; and that it was replaced by a new plank very soon after this accident, as was shown,

also, to have been the case in respect to the defective plank which caused the accident.

5. The testimony of two witnesses goes to show that the defect had existed for several weeks prior to the accident, and that it was apparent. The evidence sustains the conclusion of the jury that it had existed for such a period of time that the city was chargeable with notice of it.

6. We cannot declare the damages awarded ($2,000) to be excessive. The evidence tended to show that the accident resulted in an incurable affection of the spinal cord, which will always seriously impair the plaintiff's physical powers, and cause permanent suffering. The order denying a new trial is affirmed.

GILFILLAN, C. J., did not hear the argument, and took no part in the de

cision.

CARGILL and others v. MILLERS' & MANUF'RS' MUT. INS. Co. of

Minneapolis.

Filed January 10, 1885.

1. FIRE INSURANCE-POLICY CONSTRUED PROPERTY INSURED.

A policy of insurance upon a grain "elevator building and additions" construed as covering a warehouse standing two and a half feet from the elevator proper, and attached to it by boards nailed to both buildings. The warehouse was used only for the storage of grain received into the elevator and conveyed by spouts to the warehouse. Grain was discharged from the warehouse through the elevator by a conveyor running under both buildings.

2. SAME TIME OF PAYMENT-PROOF OF Loss.

see

The policy provided, “in case of loss, the assured shall forthwith notify the se retary in writing, and shall, as soon as may be, render to the company a particular statement in writing, signed and sworn to (proof of loss.) "It prescribed that payment should be made within a time named, subsequent to notice, as aforesaid, of such loss." Policy construed as fixing time of payment with reference to the written notice of loss, and not with reference to the formal proof of loss. Appeal from an order of the district court, Hennepin county. J. S. Root, for respondents, W. W. Cargill & Bro. and another. Cross, Hicks & Carleton, for appellant, Millers' & Manuf'rs' Mut. Ins. Co. of Minneapolis.

DICKINSON, J. Action upon a policy of fire insurance, the property insured being described in the policy as a "steam-power elevator building, and additions, with porches and platforms attached, including engine and boiler house. * * *" One of the questions in the case is whether the policy covered a warehouse standing near the elevator. The warehouse stood within two and a half feet of the elevator building, and was of about the same size as the elevator. The two buildings were fastened together by strips of board-about 20 in number-nailed upon each building. The warehouse was used exclusively for storing grain, which was first received into the elevator and then spouted into the warehouse through two spouts which extended from one building to the other. The grain was taken from the warehouse by a conveyor running under the warehouse and elevator. No grain was received into or discharged from the warehouse except through the elevator, the warehouse being thus used as a part of the elevator, for the storing of grain received into the elevator.

The further fact is shown that the only means of entrance to the warehouse was by a window which was reached by a ladder, or by cleats nailed on the side of the building. The court below, trying the case without a jury, considered that the warehouse was covered by the policy. We concur in this construction of the policy. The warehouse served the same purpose, and no ther, as a bin in the elevator building. It was used as a part of the eleva