There are probably several reasons why plaintiff cannot maintain this action, but the mention of one is sufficient. It will be observed that not only has no leave to bring this suit been obtained from the proper court, but also that the purpose of the action is to recover from the receiver money actually in his possession under the order of the court,In other words, "a fund in court,"-and of which he has taken possession in strict conformity with the directions of the court. The possession of the fund by the receiver cannot be interfered with in that way. Without now considering the question whether plaintiff's proper course would have been to obtain leave from the court to sue the receiver, or to have intervened and asserted his right to the money in the foreclosure action, and without determining what the effect of a failure to obtain leave to sue would be in actions not interfering with the actual possession by the receiver of property or money which he holds under the order of the court, we hold that this action cannot be maintained. See Barton v. Barbour, 104 U. S. 126. Judgment affirmed.

GILFILLAN, C. J., absent on account of sickness; took no part.

MAHONEY v. MAHONEY. (Supreme Court of Minnesota. Dec. 7, 1894.) DIVORCE-ALLOTMENT OF HOMESTEAD-LIEN FOR ALIMONY-ENFORCEMENT.

1. In making an adjustment or division of the property of the husband between the parties in an action for divorce, the court may set off to the wife a whole or a part of the homestead, or may, in lieu thereof, allow her alimony, and make it a specific lien on the homestead. The provisions of the constitution and statutes relating to "homestead exemptions" have no application to such a case.

2. Even if execution is not the proper method of enforcing such specific lien, yet if the judgment itself provides for that mode of enforcement it is merely judicial error, which is no ground for collateral attack. Whether the homestead can be sold on a judgment for alimony where it is not made a specific lien on the land, quere?

(Syllabus by the Court.)

Appeal from district court, Blue Earth county; M. J. Severance, Judge.

Action by Margaret C. Mahoney against John J. Mahoney. Judgment for plaintiff, and defendant appeals. Affirmed.

A. J. O'Grady and C. O. Daley, for appellant Pfau & Young, for respondent.

MITCHELL, J. Action to recover possession of 80 acres of land. The material facts found by the court are that in a former action between these same parties, who were then husband and wife, judgment was rendered granting the plaintiff an absolute divorce on the ground of cruel and inhuman treatment, and granting her $700 alimony out

of the property of the defendant, and adjudg ing the same a specific lien on the land here in controversy, and that collection might be enforced by execution; that execution was duly issued upon this judgment or decree, directing the sheriff to collect said sum out of the property of the defendant; that under this execution the sheriff sold the land, as the law directed, to the plaintiff, and executed to her a certificate of sale; that the land has not been redeemed from this sale, although the time of redemption has expired; that at the time of the trial of the divorce ac tion the land was the homestead of the defendant, and his family, and that he has ever since continued to reside on it, claiming it as his homestead. There are two grounds upon either of which the judgment in favor of the plaintiff must be affirmed: First. Even if the court erred in the former action in decreeing plaintiff's alimony to be a specific lien on the homestead, yet this would be mere error, and would not render the judgment void. It could not be collaterally attacked on that ground. Second. The judgment was not in that respect even erroneous. The statute provides that upon any divorce, for any cause except the adultery of the wife, the court may decree to the wife such real estate of the husband, not exceeding the value of her dower, as it deems just and reasonable under the circumstances, and may also decree her such alimony out of the estate of the husband as it may deem just and reasonable, and by its decree make the same a specific lien upon any specified real estate of the husband. Gen. St. 1878, c. 62, § 23. An allowance or allmony to the wife out of the property of the husband, in case of a divorce, is not a debt or liability within the meaning of either the constitution or statute relating to exemptions. In providing for the division and adjustment of property in case of divorce, the law proceeds upon the theory that the wife has an interest in the property of her husband. This is peculiarly true of a homestead, which is exempted from seizure and sale for debt, for the benefit of the wife and children, if any, as Iwell as of the husband. This consideration, whether expressed in terms or not, lies at the foundation of all homestead exemption laws Therefore, in making an adjustment or division of the property of the husband in case of a divorce, the "homestead exemption" has no more application than it would have in an ordinary suit for partition. The court can set off to the wife in fee the whole or a part of the homestead, or, if this is impracticable, it may allow her a sum of money equivalent to her proper share of the homestead, and make the amount a specific lien on the land. While the homestead laws of the various states differ from each other in many respects, yet this principle runs through the decisions under all of them. See Wap. Homest. p. 68, et seq.; Brandon v. Brandon, 14 Kan. 342; Blankenship v. Blankenship. 19 Kan. 159; Armstrong v. Armstrong, 35 Ill. 109; Dan

tels v. Morris, 54 Iowa, 369, 6 N. W. 532; Webster v. Webster, 64 Wis. 438, 25 N. W. 434. Whether, when the amount allowed the wife is decreed to be a specific lien on specified lands, the proper way of enforcing the lien is by execution, we need not inquire. In the present case the judgment itself provided for that manner of enforcement, and hence, even if this was erroneous, it was merely judicial error, which is no ground for collateral attack. Whether the homestead could be sold on execution on a judgment for alimony where the judgment itself does not make it a specific lien on the land is a question upon which we intimate no opinion; for no such question is presented. Judgment affirmed.

1. Held, that the allegations found in the answer herein, respecting the making of a collateral parol agreement between plaintiff and defendant, were not inconsistent with, nor did they qualify, the terms of the written lease set forth in the complaint, and admitted by the answer; and that said allegations made an issue to be disposed of on trial.

2. The rule laid down in Johnson v. Albertson, 53 N. W. 642, 51 Minn. 333, as to the effect of certain acts as indicating an intention to create a yearly tenancy of urban property, applied to the pleadings in this action.

(Syllabus by the Court.)

collateral agreement was made or independent fact occurred, contemporaneously with, or was preliminary to, the written contract The allegations of the answer as to an agreement under which defendant took possession at the expiration of his term were sufficient to constitute a defense, to be disposed of on the trial.

Again, putting aside these allegations, the plaintiff was not entitled to judgment on the pleadings. The written lease was for a half year terminating December 1, 1892, the agreed rent being $40 per month. The property was urban. It appeared that defendant occupied the same and paid his rent for the specified term. He then remained during the months of December, 1892, and January, 1893, paying rent at the same rate per month. He vacated the premises on or before the last day of January, having previously given one month's notice to plaintiff of his intent so to do. Where urban property is involved, such acts, standing alone, are insufficient to indicate an intention to create a yearly tenancy. Remaining in possession for two months after the expiration of the lease, with payment of rent each month at the rate provided for in the lease, cannot be construed as indicating anything more than creating a tenancy from month to month. Johnson v. Albertson, 51 Minn. 333, 53 N. W. 642. Judgment reversed.

GILFILLAN, C. J., absent on account of sickness; took no part.

POWELL v. NEWELL.

H. W. Cory, Judge.

Action by Hiram Backus against Emil F. Sternberg for rent. Judgment was rendered for plaintiff, and defendant appeals. Reversed.

Sheehan, Cannon & Thomas, for appellant. Tyler & Tyler, for respondent.

COLLINS, J. It was certainly competent for defendant to prove that it was orally agreed between plaintiff and himself that, if he would lease the premises in question for a half year, he should be permitted to enter into possession on the expiration of his term, as a tenant at will, and pay rent at a stipulated rate per month so long as he retained possession, and no longer. Such an agreement was a collateral contract not at all inconsistent with the written lease as the same was set forth in the complaint. The authorities are abundant that proof is admissible of any collateral parol agreement, or of any independent fact, which is not inconsistent with, or does not qualify, any of the terms of the written contract, even though it may relate to the same subjectmatter; and it is immaterial whether such

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- ILLNESS OF AGREE

CONTRACT FOR PERSONAL SERVICES CONTRACTING PARTY EFFECT MENT FOR MEDICAL ATTENDANCE. 1. Contracts for personal services are subject to the implied condition that the party contracting to perform shall continue in health, and such contracts are revocable by his incapacity from illness to perform.

2. Held, on the facts in this case, that defendant was released from his promise to pay for professional services and medicine to be rendered and furnished in the future by plaintiff, a physician, because of the inability of the latter, through illness, to render the services or furnish the medicines when called

on.

(Syllabus by the Court.)

Appeal from district court, Hennepin county; Robert D. Russell, Judge.

Action by D. Frank Powell against J. D. Newell on a promissory note. From an order denying a motion for a new trial, plaintiff appeals. Affirmed.

George S. Grimes, for appellant. E. S Slater, for respondent.

COLLINS, J. Plaintiff is a physician with offices at La Crosse, Wis., and St. Paul, Minn. Defendant resided at Lanesboro, Minn., about 55 miles from La Crosse, Sep

tember 15, 1892, and had theretofore been treated professionally by plaintiff. On the day just mentioned defendant, who was ill, called upon plaintiff at his office in La Crosse for medical treatment and advice. The latter prescribed and furnished medicines, was paid $5 in cash, and defendant executed and delivered the note in question, which was for $95, payable 90 days from date at a bank in La Crosse. The consideration for the execution and delivery of the note was future treatment and medicines, and plaintiff gave to defendant a written receipt, in which the note was acknowledged as being payment in full of his account for treatment and medicines so long as he may require. About a month later defendant went from his home to La Crosse for medicines and further treatment. He called at plaintiff's office early in the morning, and upon the trial testified that he was informed by the persons in charge that the doctor would not see any patient before 10 o'clock, while plaintiff and his witnesses testified that defendant was informed that plaintiff was very sick, had been confined to his bed for sev eral days, and could not see any one. The defendant thereupon left La Crosse, and has not since applied to plaintiff for any professional services, and when sued upon the note interposed the plea of a failure of consideration. The court below found as a fact that when defendant called upon plaintiff for further medical treatment and medicines the latter was sick, and for that reason refused to see him. Judgment was ordered for defendant, and this appeal is from an order denying plaintiff's motion for a new trial.

Plaintiff's contract, the consideration for the note, was for the rendition of professional, and hence personal, services. He could not delegate the performance of these services to another physician. The rule is that contracts for personal services are subject to the implied condition that the party contracting to perform shall continue in health, and such contracts are revocable by his incapacity from illness to perform. If he becomes disabled through sickness, the other party is released from his obligation under his part of the contract. But whether sickness is to constitute an excuse sufficient to release the party who has agreed to render personal services, or sufficient to absolve one who has contracted with him for such services, must necessarily depend on the circumstances of each case. In this instance we think the defendant was released from his obligation to pay in accordance with the terms of his note. He made it relying upon plaintiff's ability to treat him professionally for such period of time as was necessary, and at such times as his condition required. When he called for this treatment, plaintiff was ill himself, confined to his bed, and

unable to be consulted. There was nothing said to defendant as to how long he might have to wait for plaintiff's services, or which indicated that the latter would ever be able to render them. It was not incumbent upon defendant to sacrifice his own case, or his chances for recovery, by postponing proper medical treatment. The court below was Justified in its conclusions. Order affirmed.

TEIPNER et al. v. BANK OF WATERVILLE.

(Supreme Court of Minnesota. Dec. 13, 1894.) BREACH OF WARRANTY-HARMLESS ERROR. Held that, if the court below erred in any of its rulings on the trial, it was error without prejudice.

(Syllabus by the Court.)

Appeal from district court, Hennepin coun. ty; Robert D. Russell, Judge.

Action by E. J. Teipner and Styles M. West, partners as Teipner & West, against the Bank of Waterville, a corporation. Judgment for defendant, and plaintiffs appeal. Affirmed.

C. E. Brame, for appellants. Fletcher, Rockwood & Dawson, for respondent.

COLLINS, J. This was an action to recover a small balance said to be due to plaintiffs on account for putting a time lock into defendant's bank safe. The defense was a breach of warranty of the lock. The warranty depended upon was in writing, and by its terms plaintiffs guarantied that the movements of the lock No. 6,346 were perfect in construction, of good material, and would "work all right." If defects were discovered within five years, plaintiffs agreed to replace the lock with a new one of the same kind. The real issue on the trial was whether there was a breach of the contract of warranty, and the testimony was clear that there had been a flagrant breach of it. The lock had been used before, the working movements were filled with dirt, and it would not operate, all of which was discovered, and plaintiffs notified, within two months after the lock was attached to the safe. Several assignments of error relate to the admission of testimony, over plaintiffs' objections, as to conversations between the parties prior to the sale of the lock, and the execution of the written contract, and also at the time the lock was being put in. We do not think any of these assignments entitled to discussion. If there was error in any of the rulings on these matters, the plaintiffs were not prejudiced. The other assignments are not worthy of consideration. Order affirmed.

GILFILLAN, C. J., absent on account of sickness; took no part.

BUICK et al. v. MECHANICS' INS. CO. (Supreme Court of Michigan. Dec. 18, 1894.) CANCELLATION OF INSURANCE-POWER OF INSURED'S AGENT.

1. An agent who has entire charge of the insurance upon property of his principal may accept notice of the cancellation of a policy, and procure substitute insurance upon the same property in another company, without previous notice to his principal, and the policy last issued will be valid.

2. The waiver of a stipulation contained in the first policy providing for five days' notice of cancellation by the parties to it would not affect the liability of the company issuing the substitute policy.

Error to circuit court, Wayne county; George S. Hosmer, Judge.

Action by David Buick and William Sherwood against the Mechanics' Insurance Company upon a policy of insurance issued by the said insurance company. From a judgment for plaintiffs, defendant appeals. firmed.

Af

The court made the following findings of facts and law, viz.: "(1) The Mechanics' Insurance Company, defendant herein, and the Michigan Fire & Marine Insurance Company were both authorized and doing business in the state of Michigan at the time of the occurrence hereinafter mentioned, and had agencies in the city of Detroit; that Bierce & Sage were local agents of the defendant company, with authority to place insurance and issue policies in that company. (2) F. O. Davenport is in the insurance business in the city of Detroit, receiving orders and applications for insurance from whomsoever might apply to him, placing such orders or applications with various insurance companies, among which was the Michigan Fire & Marine Insurance Company, for a certain percentage of the premium paid, which was allowed and paid him by the company or insurance agency with whom the application for insurance was placed. There was a system of debits and credits kept both by him and the companies or agencies with whom he dealt, which were balanced on the 10th of each month. The said Davenport had entire charge of plaintiff's' insurance business continuously from the time they first went into business to a little over nine years ago. The plaintiffs were mechanics when they went into the business, green out of the factory, and knew nothing of business, especially of insurance business; and on the recommendation of Mr. Green, of the Wesson estate, they went to Mr. Davenport, and engaged him to look after their insurance. They simply notified him of the amount of insurance they wanted. They never told him what company to put it into, but he selected the companies to suit himself; and they never asked him, and never knew, what company he was going to put it in, and never paid any attention to the companies in which their insurance was placed. V.61N.w.no.4-22

The matter was left entirely to Mr. Davenport's judgment and discretion. The policies were always sent to plaintiffs. Mr. Davenport paid the premiums, and collected them of the plaintiffs afterwards. At the time of the fire, plaintiffs did not know the names of any of the companies that insured them, or what policies they had. (3) On or prior to the 16th day of August, 1892, said Davenport received an order from Buick & Sherwood, the plaintiffs, to place $4,000 insurance on the contents of their building in the city of Detroit, leased and occupied by them; and, in fulfillment of such order, Davenport prepared the typewritten slips describing the property to be insured, and procured the same to be insured in several companies, and, among others, procured a policy of the Michigan Fire & Marine Insurance Company for $1,000, being in form a Michigan standard fire policy, and which said Davenport afterwards delivered to plaintiffs with the other policies for the remaining $3,000, in fulfillment of such order. The Michigan Fire & Marine Insurance Company dealt with reference to this policy with only said Davenport, and had no communication with the plaintiffs, or either of them. No premium was ever paid to it for this policy. (4) On or about September 1, 1892, the secretary of the Michigan Fire & Marine Insurance Company telephoned to Mr. Davenport that it desired to cancel its said policy, and for him to replace it, to which Mr. Davenport replied, 'Very well.' Within hour, Mr. Davenport had forms prepared, and went with them to the office of Bierce & Sage, which was in the same building as his own office, and at once replaced the said policy with the policy in suit; and later, in the same day, in response to a second telephone inquiring from the secretary of said Michigan Fire & Marine Company, notified said secretary that he had replaced their policy. It is the usual custom of insurance officers in Detroit, when requested to cancel policies which they have procured, to cancel them at once, and replace the insurance, and that custom had before been acted upon between the said Michigan Fire & Marine Insurance Company and said Davenport. Mr. Davenport had not then paid the premium on said policy of said Michigan Fire & Marine Insurance Company, and none was thereafter paid. No written or formal notice of cancellation was ever given to Davenport or plaintiffs. (5) The policy in the suit, properly executed, was delivered to Davenport on September 1, 1892, and was the usual Michigan standard fire policy, covering and insuring the same property in the sum of $1,000 for the term of one year. It was examined and inspected by Miss Raymond, clerk in Davenport's office, and sent by her by mail to plaintiffs, the same day or the next, with a note inclosed, stating, in substance: 'I inclose the Mechanics' policy No. 402,279, for $1,000, to replace the Michi

an