4. Where defendants contracted in writing for timber averaging 55 cubic feet per stick, evidence by them as to whether, at the time they entered into the contract, they would have contracted for timber averaging less per stick, is not competent.

5. In an action on a contract which required plaintiff to deliver logs at a given time and place astern a vessel to be furnished by defend

ants, evidence as to whether defendants had a vessel at the place at the time the contract called for is admissible to prove that defendants consented to delivery at a later date.

6. Plaintiff, by the terms of a written contract, was to furnish defendants with 20,000 cubic feet of timber, averaging 55 cubic feet per stick, at 261⁄2 cents per cubic foot, suitable for the Quebec market, the title to the timber to vest in defendants from the time it was manufactured in the woods. A scaler sent by defendants into the woods to accept the logs marked some logs S & K, diamond, and others S & K. Those marked S & K were those suitable for the Quebec market, but they averaged very small, and were accepted upon the condition that other logs furnished should bring the average up to 55 cubic feet per stick,-what the contract called for. Held that, the other logs furnished not so bringing up the average, the defendants were not bound by such acceptance, and therefore a subsequent receipt of the timbers could not oblige them to pay the contract price for any logs not brought within the aver

age.

1. It was shown on the trial that the plaintiff had run the timber down the Chippewa and, when he reached the mouth of the Chippewa river with his drive, he found a boom across the mouth of the river, placed there by the owner of a mill maintained at that place. Plaintiff was permitted to show, against defendants' objection, that he c sulted defendants' attorney relative to his right to cut the boom, and went up on purpose to cut the boom, and defendant Kelly said to him it was not best to do so, as it would make hard feelings, and there was no hurry about any of the timber, and there would be time enough, and not to cut the boom; and that, acting upon this, the plaistiff was detained there five weeks. He was therefore not able to deliver the timber at the date contemplated. We think this testimony was competent as tending to show that the delay was assented to by defendants. Barton v. Gray, 57 Mich. 622, 24 N. W. 638

2. The next objection is to the admission of testimony on the part of the plaintiff to show that a raft of timber was delivered at Davidson's shipyard, instead of astern of a vessel; and that plaintiff was requested by

Action by St. Ange Duplanty against William Stokes and David Kelley. Judginent for plaintiff, and defendants bring error. Reversed.

T. A. E. & J. C. Weadock, for appellants. Simonson, Gillett & Courtright, for appellee.

MONTGOMERY, J. Plaintiff recovered a balance claimed to be due him for certain lumber,-logs and square white oak timber. It was conceded on the trial that plaintiff had furnished board pine and saw logs, and was entitled to a credit therefor of $1,853.50. The dispute arose over the allowance which should be made to plaintiff on account of square oak timber, and over the damages claimed by defendants for the nonperformance of the special contract by plaintiff. The agreement between the parties was in writing, and, by the terms of it, plaintiff agreed to sell to the defendants 20,000 cubic feet of square white oak timber suitable for the Quebec market, and to deliver the same astern a vessel in Saginaw river, at Bay City, on or before June 1, 1890, all of said timber to average 55 cubic feet per stick. The defendants undertook to pay plaintiff at the rate of 261⁄2 cents per cubic foot for all said timber manufactured and delivered in the manner recited, "which sum shall be payable as follows: 15 cents per cubic foot when manufactured in the woods; 5 cents per cubic foot when delivered on the railroad; and the balance when said timber is delivered astern of a vessel at Bay City." A further provision of the contract was that the title to said timber should be vested in said Stokes and Kelley from the time the said timber was manufactured in the woods.

and charged defendants with his time. We think the bill of particulars was broad enough to admit of the proof, and that there was sufficient to justify an inference by the jury of a promise to pay for this service.

3. Some timber was delivered smaller than the average required, and testimony was admitted to show that plaintiff had been offered 24 cents per foot for such timber. The ob jection seems to be that the testimony as to the price offered was too remote in point of time, but we think not, as it was after the making of the contract, and before delivery. 4. The fifth assignment of error is based upon a ruling of the court in permitting a witness to testify as to the difference be tween the American and Canadian hooks used in measuring timber. Defendants counsel, in his brief, states: "The error of this ruling will be seen when it is recalled that the raft of logs which was sold to Davidson, and which McDonald measured, was meas ured by the American hook, which is most favorable to the seller; and it was simply introducing into a case an element which could serve no purpose except to confuse the jury." But the witness who measured the timber testified that, "in measuring the six hundred and twenty pieces, I used the Canadian hook and rule, at Mr. Stokes' request. That would give less timber than if measured by the American hook. Mr. Stokes was with me when I was measuring it. In figuring the amount, we used a ready reckoner and the Canadian rule."

5. The next assignment of error is based upon the refusal of the court to permit the defendant Kelley to testify as to whether he would have contracted with plaintiff for timber averaging less than 55 cubic feet per

stick at the time he made the contract, in the fall of 1889. This ruling was clearly proper. The defendants were entitled to the benefit of their contract, without regard to whether they would have contracted for a less average at the time.

6. Error is assigned upon permitting questions to be put to the witness Kelley, on cross-examination, as to whether he had a boat to take the timber on the 1st of June. We cannot say that this did not have some bearing upon the question as to whether he understood that he had waived the delay, as claimed by the plaintiff.

7. It appears that, during the time this timber was being manufactured, the defendants sent their scaler into the woods, who scaled and marked the timber, a portion being marked S & K, which was supposed to be that suitable for the Quebec market, and some marked S & K, diamond. That marked S & K, as appeared by the testimony, was only suitable for the Quebec market in case the average of the lot should be 55 feet. The court ruled, in effect, that an acceptance of the timber marked S & K, being the mark designed for timber suitable for the Quebec market, was conclusive, and the defendants could not afterwards assert that this timber did not average 55 feet. It is undoubtedly the general rule that an acceptance of a commodity furnished in pursuance of an executory contract, as in compliance with the terms of such contract, is conclusive upon the purchaser, and he cannot afterwards be heard to say that the article does not answer the terms of the description. But we think that rule was misapplied in the present case. Under the contract between the parties, the title to the timber vested in the defendants from the time it was manufactured in the woods; and one of the defendants testified that he looked over the timber, and found it very small in average; that he told plaintiff that his average was very low, and that he would have to get some much larger timber to make up his average according to his contract; that he said he would, that he had the timber bought,-the stumpage. Defendant further testified: "I went two or three times during the winter with the culler. The timber was not growing larger in average. I had a talk with Mr. Duplanty after the first time. I made some complaints to him. At this time considerable money had been given to Mr. Duplanty." So it would appear that the money was advanced upon a distinct understanding that this timber which had been marked by the defendants, and the title to which had, under the terms of the contract, vested in the defendants, should be made to average 55 feet by supplying other larger timber, which was not done. Under these circumstances, we do not think the acceptance of the timber prevents defendants from raising the question of whether it complies with the contract. They were not bound to reject it,

and thereby lose their llen upon it, particularly as plaintiff testified: "I had a talk with him [defendant Kelley] about the timber that would be under the average. I asked him what was going to be done about the small timber. That was the timber that was under the average. * 'Well,' he says,

'we will have to do as I said; we will have to take it down, and you can sell it to whom you like.' 'Well, all right,' says I. And I met Mr. Armstrong, the man that buys timber for Mr. Wheeler. I was acquainted with him, and he spoke to me about some small timber. After that I saw Mr. Stokes, and I told him what I could get for the square timber. He says, 'We will give you the same.' I told him I was offered 24 cents for the small timber that was under the average, and he said, "If you were offered 24 cents, I will give you the same.' So he kept that, too. He accepted both the small and largetimber that I delivered. Mr. Stokes did not make any objections to any of the timber, nor did Mr. Kelley, either as to size or how it was made." It is very clear that, under this testimony, the defendants were not bound by the receipt of the timber to pay the contract price for anything below such as would make the average 55 feet, unless the fact of having placed the mark indicating that the timber was suitable for the Quebec market (S & K) upon the timber in the woods concluded them. But we think, if defendants' testimony were to be accepted by the jury, it is not conclusively shown that these marks and the subsequent receipt of the timber evidenced any such intent, as by that testimony the mark was placed there provisionally, and defendants had the right to rely upon the plaintiff's agreement to supply enough larger timber to bring the average up to 55 feet.

We think none of the other questions are likely to arise upon a new trial. The judgment will be reversed, with costs, and a new trial ordered. The other justices concurred.

OLMSTEAD et al. v. FIRTH et al. (Supreme Court of Minnesota. Jan. 21, 1895.) ATTORNEY AND CLIENT-AUTHORITY TO APPEAREVIDENCE.

Where an order to show cause why a judgment already entered in plaintiffs' favor should not be set aside and vacated is procured upon affidavits of an attorney who had already appeared and answered for defendants in the action, of one of the defendants, and of another attorney who states that he is one of defendants' attorneys, and where, upon the hearing. the last-named attorney produces written authority to appear for defendants, although such authority is executed five days after the order is procured, it is error for the court to dismiss the proceedings solely upon the ground that no authorized attorney has appeared in defendants" behalf.

(Syllabus by the Court.)

Appeal from municipal court of St. Paul John Twohy, Jr., Judge.

Action by Oliver J. Firth and Jacob Kraus, copartners as Firth & Kraus, against Stanley C. Olmstead and Emma J. Olmstead. From a judgment denying an order requiring defendants to show cause, plaintiffs appeal. Reversed.

Lloyd Peabody and W. F. Carroll, for appellants. S. C. Olmstead and John W. Best, for respondents.

COLLINS, J. The order appealed from must be reversed. The order to show cause why the judgment against defendants should not be set aside because irregularly and improperly entered was based upon the affidavits of William F. Carroll, an attorney, who, while practicing law in St. Paul, had appeared and answered for defendants in this action, and then removed to Chicago, of Firth, one of the defendants, and of Lloyd Peabody, an attorney practicing in St. Paul, who personally presented the affidavits, and obtained the order to show cause, or short motion. In his affidavit, Mr. Peabody stated that he was one of defendants' attorneys in the action, and made the affidavit for the purpose of vacating and setting aside the judgment. Copies of these affidavits were served with the order or motion upon plaintiffs' attorneys, so that there should have been no doubt in their minds that Mr. Peabody was appearing with Mr. Carroll, and not as an attorney substituted for him. Again, upon the hearing below, Mr. Peabody produced written authority to appear in defendants' behalf. The point is made that this authority was not executed until five days after the order was procured by Peabody, but this is altogether too technical, In effect, it related back and recognized all that he had done in the proceedings.

The order appealed from was placed solely on the ground that no authorized attorney had appeared for defendants in the motion to vacate and set aside the judgment. The objection as to Peabody's authority should have been promptly disregarded. Of course, we do not intimate that the relief asked for should have been granted, but simply that the merits of the application should have been considered. Order reversed.

HARDIN'S ESTATE et al. v. HARDIN et al. (two cases).

(Supreme Court of Minnesota. Jan. 18, 1895.)
APPOINTMENT OF ADMINISTRATOR-EXECUTOR UN-
DER FOREIGN WILL-CONSTRUCTION
OF PROBATE Code.

1. Sections 32-34, 50, of the Probate Code (Gen. St. 1894, §§ 4439-4441, 4457), construed, and held, that said section 50 (Gen. St. 1894, § 4457) applies only to domestic wills, and not to the case of a foreign executor named in a foreign will, and appointed as such by the court of the domicile, when such foreign executor is seeking appointment by the court of this state on allowance of the exemplification of the will

by it, and there are resident legatees opposing his appointment; but the court may refuse to appoint him, though he is legally competent, as provided by that section.

2. Held, under said section 34 of the Probate Code (Gen. St. 1894, § 4441), such foreign executor is entitled to appointment in this state in such a case, unless the court, in the exercise of a sound discretion, finds that there is some good reason why he should not be appointed. and that adverse interest and acts of bad faith on the part of such foreign executor in regard to the estate may constitute such good reason. (Syllabus by the Court.)

Appeals from district court, Waseca county; Thomas S. Buckham, Judge.

In re estate of Chancy Hardin. Action by A. P. Jamison and others against D. S. Hardin and others to prevent issuing of letters testamentary to foreign executors. From a judgment of the district court affirming one of the probate court for defendants, and an order overruling their motion for a new trial, plaintiffs appeal. Reversed.

Sawyer & Sawyer and F. B. Andrews, for appellants. Davis, Kellogg & Severance and John Moonan, for respondents.

CANTY, J. The will of the testator, Chancy Hardin, was duly proved at the place of his domicile in Illinois, and letters testamentary issued to the three executors named in the will. Thereupon a copy of such foreign will and such probate thereof, duly authenticated, was filed by such foreign executors in the probate court of Waseca county, in this state, with a petition that letters testamentary be issued to them by that court. The will was thereupon duly allowed by said probate court under and pursuant to sections 32 and 33 of the Probate Code (chapter 46. Gen. Laws 1889; sections 4439, 4410, Gen. St. 1894). The appellants are legatees under the will, residing in this state. They appeared and opposed the issuing of letters to the foreign executors on the grounds hereinafter stated, but the probate court ordered such letters to issue. An appeal was taken by these appellants to the district court, where the executors again prevailed, and this appeal is taken.

The appellants alleged, in opposition to the appointment of such executors, that they were not residents of this state, which is admitted. They also alleged, among other things, that the testator died seised of a large amount of real and personal property, situated in said Waseca county and in other counties in this state, all of which was his sole individual property; that shortly after his death, said executors took possession of said property under the claim that it was the property of a partnership composed of the testator and themselves, and of which they were the surviving partners; that after the death of said testator, and prior to these proceedings, a special administrator of his estate was appointed by said probate court; that he demanded the possession of said property from said foreign executors, who re

fused to deliver it to him, but made and published a notice that in 10 days thereafter they would sell, as such surviving partners, at public sale, for cash, at a certain time and place, a part of said property, to wit, nine several tracts of land situated in three different counties; that thereupon said special administrator sued out a writ of injunction, and enjoined said sale, which injunction is still in force. On the trial the appellants offered to prove all of these allegations, and also offered to prove that there was no such firm or partnership as that claimed by said executors, or any partnership of any kind, in which said estate is interested. All of these offers were objected to on the ground that they were incompetent and immaterial, and "that no evidence is competent to sustain any objection to the appointment of these executors, except evidence slowing that they are not legally competent." Appellants assign as error the sustaining of these objections. There were further allegations imputing bad faith to the executors in assuming to act as such surviving partners, and in attempting to dispose of the assets of the estate, and showing that the sacrifice of the assets so alleged to have been attempted would reduce the amounts of the legacies of these appellants.

Section 50 of said Probate Code (section 4457, Gen. St. 1894) provides that "when a will is duly proved and allowed, the probate court shall issue letters testamentary therein to the executor named therein if he be legally competent and accepts the trust and gives bond as required by law." It is clained by respondents that the facts offered to be proved would not show the executors named in the will to be legally incompetent; citing Schouler, Ex'rs, § 33, and other authorities. This is conceded by appellants, but they claim that said section 50 (Gen. St. 1894, § 4457) does not apply to such foreign executors, and that it is in the discretion of the court to refuse to appoint such foreign executors on account of such adverse interest and acts of bad faith, though these objections fall short of constituting legal incompetency. It is true that our statute makes the foreign probate conclusive as to the allowance of the will in this state, but it does not follow that the foreign appointment of executors is conclusive where there are resident creditors or legatees, or that in such a case the court in this state is bound to appoint the executors named in the will. As we construe the Probate Code, the statutory comity does not go that far. Said section 32 (Gen. St. 1894, § 4439) provides that "when a copy of a will and the probate thereof duly authenticated is produced by the executor or other person interested in such will, to the probate court" by certain proceedings, it may be allowed here. Section 34 (Gen. St. 1894, § 4441) provides that "when any will is al

lowed as mentioned in the next preceding section the probate court shall grant letters testamentary or letters of administration with the will annexed, and such letters testamentary or of administration shall extend to all the estate of the testator in this state." It is this section, and not section 50 (Gen. St. 1894, § 4457), above quoted, which applies in this case. While section 50 (Gen. St. 1894, § 4457) purports to give the probate court no alternative but to appoint the exector named in the will if he be "legally competent" and accepts, section 34 (Gen. St. 1894, § 4441) is not so worded. In view of the history of these sections of the statute, and of the conflicting interests which so often arise, especially between the local creditors on the one hand and the other creditors, foreign executors, or legatees on the other hand, it should not be held that sections 34 and 50 (Gen. St. 1894, §§ 4441, 4457) both apply to this case, and must be read together in disposing of it. On the contrary, we are of the opinion that section 50 (Gen. St. 1894, § 4457) applies only to domestic wills. Said section 50 (Gen. St. 1894, § 4457) is the same as section 1, c. 51, Gen. St. 1878, and said section 34 (Gen. St. 1894, § 4441) is a re-enactment of section 21, c. 47, Gen. St. 1876, with the amendment added thereto by chapter 64, Gen. Laws 1870, omitted. This amendment reads as follows: "Letters testamentary or letters of administration with the will annexed may issue to a foreign executor or administrator with the will annexed though not a resident of this state, upon filing a duly authenticated copy of his appointment and of the bond given by him in the state or country in which it was originally proved. Provided that the probate court before issuing such letters may in its discretion require him to give bonds as in other cases." If the legislature intended that the foreign executor should have such a conclusive right to appointment in this state, it would hardly have repealed this amendment, while retaining the rest of the section, and said section 50 (Gen. St. 1894, § 4457), just as they were before the enactment of the Probate Code. But still the foreign executor is entitled to appointment, unless the court, in the exercise of a sound discretion, should find that there is some good reason why he should not be appointed. The objection urged in this case might have constituted such a reason. The court should have received the evidence, and its refusal to do so was error, for which the order denying the motion for a new trial must be reversed. Because the evidence was competent, and should have been received, it does not necessarily follow that it will have sufficient weight or force to defeat the appointment of the executors. That is a matter to be determined when the evidence is all before the court. The orders appealed from are revers ed, and a new trial is granted.

1. After a will was probated at the domicile of the testator in another state, and the executors there qualified, and, before the will was probated in this state, the executors conveyed land in this state under the power of sale in the will, held, the foreign probate conclusively established the validity of the will, and after the passage of chapter 66, Gen. Laws 1870, and before its repeal by the probate code, the foreign executors there appointed had a conclusive right to appointment here, on giving the bond therein provided if required, and after the will was so conclusively established, and the executors had duly qualified at the foreign domicile, they could, in the absence of any demand for ancillary administration, so exercise the power of sale, subject to the rights of local creditors; that the authority to act under such power is contractual, not statutory, and such power is regulated as much or more by chapter 44, Gen. St. 1878 (sections 4301-4361, Gen. St. 1894), relating to powers, as by chapter 47, Gen. St. 1878, relating to wills, or chapter 50, Id., relating to executors; that the last two chapters did not apply, so as to prevent such foreign executors from so exercising such power; that, when the will is so conclusively established, the probate of it in this state is mostly a matter of form, and, when so probated here, it related back, and perfected the sale so made under the power.

2. Where a deed is made by "A. B., Executor," and signed by him in the same form, held, it sufficiently appears that it was made by him in his representative capacity.

3. Where such deed was made in 1875, was recorded in 1877, conveyed an undivided one-tenth of 80 acres and two government lots, the value of which at that time does not appear, purported on its face to be made for a nominal consideration, and was permitted ever since, until the commencement of this action, to remain unquestioned, during which time the property was conveyed many times, in apparent reliance on such deed, and is now held by many purchasers under said deed, held, it is conceded, without being decided, that for a reasonable time after the deed was made and recorded the nominal consideration expressed in it was sufficient to put purchasers on inquiry, but that time has long since passed; that, after it had so remained unquestioned a reasonable length of time, persons about to purchase had a right to conclude that a sufficient consideration had in fact been paid, and were justified in relying on the deed. The fact that plaintiffs (the devisees) did not know until the last three or four years that the deed had been procured of the executors by fraud is no reason why they should not be estopped as against such innocent purchasers. (Syllabus by the Court.)

Appeal from district court, Anoka county; Seagrave Smith, Judge.

Action by Phoenix Babcock and others against Martin F. Collins and others to have a deed, through which defendants claim title, declared void, and for partition. From an order sustaining a demurrer to the complaint, plaintiffs appeal. Affirmed.

Ripley, Brennan & Booth, for appellants. Koon, Whelan & Bennett, for respondents.

CANTY, J. This is an appeal from an order sustaining a demurrer to the complaint,

on the ground that it does not state facts sufficient to constitute a cause of action. The complaint alleges that one Francis M. Babcock died, testate, in 1872, and was at the time of his death the owner of an undivided one-tenth of certain real estate in Anoka county; that thereafter, on April 4, 1872, his last will was duly probated in the surrogate court in New York county, in the state of New York, where he resided at the time of his death; that Phoenix Babcock, one of these plaintiffs, and one John Babcock, were the executors named in said will, and that they then duly qualified as such executors; that, by the terms of said will, said executors were given authority at any time, whenever they deemed it advisable, to sell and convey the real estate left by said testator, or any part thereof; that thereafter, on the 23d of June, 1875, said executors made a deed of said land to one Thompson, which deed is set out, and by its terms it is the deed of "John Babcock and Phoenix Babcock, executors of the last will and testament of Francis M. Babcock, deceased, parties of the first part," to Thompson, and it is signed, "John Babcock, One of the Executors of the Last Will and Testament of Francis M. Babcock, Deceased," and by Phoenix Babcock in the same way. The deed recites that it is made in consideration of one dollar, and the complaint alleges that no consideration whatever was paid for it, but that it was procured by Thompson from the executors by means of false pretenses. It sufficiently appears that the defendants claim title through this deed and subsequent conveyances. A part of the land has been platted and sold as town lots, and there are 45 defendants. The plaintiffs are the devisees under the will. It is further alleged that on July 6, 1891, said will was duly admitted to probate in said county of Anoka, in, this state, and that there are no debts against said estate. The prayer of the complaint is that said deed from the executors to Thompson be set aside and declared void, and that the real estate be partitioned between plaintiffs and the defend ants, who are owners of the other ninetenths of the same.

2. The appellants contend that the deed from the executors to Thompson, having been made before the will was probated in this state, and before the executors had qualified and received letters testamentary from a probate court in this state, is void. On the other hand, the respondents contend that the will, having been since probated in this state, relates back, and takes effect from the time of the death of the testator, and validates the exe cution of the deed. Section 17, c. 47, Gen. St. 1878, provides that "no will shall be effectual to pass either real or personal estate unless it is duly proved and allowed in the probate court." However, it is well settled that the probate of a will relates back and gives effect to a deed made by a devisee before the probate. But it does not follow that