ciently broad to require the appearance of "The language of this recognizance is suffithe accused from time to time, and from term to term, so long as the proceeding in which he was charged was continued."

Even if the cause was omitted from the calendar, or there was a failure to continue it formally, it was not thereby dismissed. It was still pending for trial, and defendant was under the bond obligated to produce him whenever the court should direct or set the cause for trial.

bond, G. S. 1913, § 9091, so clearly makes Apart from the express language of the ineffective every defense here sought to be interposed as to preclude further discussion. It reads:

"No action brought on any recognizance thereon arrested, by reason of any neglect or shall be barred or defeated, nor judgment omission to note or record the default of any principal or surety at the term when it occurs, or by reason of any defect in the form of the recognizance, if it shall sufficiently ap

(180 N.W.)

pear from the tenor thereof at what court | of what was being done or omitted to be done the party or witness was bound to appear, and in the disposition of Cooper's cause. The that the court or magistrate before whom it stipulation was on file. If its terms were was taken was authorized by law to require not to defendant's liking, or if any other and take it." step taken in the cause made its position as surety undesirable, if could at once surrender Cooper under G. S. 1913, § 9094. The stipulation, even if it be conceded effective without the action of the court, does not contravene the conditions of the bond, and cannot be held to release the surety.

Counsel for defendant places great reliance on Reese v. United States, 9 Wall. 13, 19 L. Ed. 541; but it is to be noted that there the stipulation to continue the cause until the determination of certain civil actions was entered and granted by an order of court. Here the oral arrangement was without the knowledge or consent of the court. In Tanquary v. People, 25 Colo. App. 537, 139 Pac. 1118, the demurrer admitted that the cause had been abandoned by the state, as averred in the answer, and that that fact was communicated to the accused and his surety, and the court held this showed the bond to have served its purpose, and the principal and sureties entitled to a formal discharge.

Appeal from District Court, Ramsey County; James C. Michael, Judge.

Action by Michael J. O'Neil against Watson P. Davidson for installment of rents, with counterclaim by defendant for damages and a rescission. Verdict for plaintiff allowing damages on the counterclaim, and from an order denying him a new trial, defendant appeals. Order affirmed.

Lightner & Young, of St. Paul, for appellant.

Baldwin Schroeder and Linus O'Malley, both of St. Paul, for respondent.

HOLT, J. Plaintiff sued for five monthly installments of rent; and defendant counterIn view of the foregoing conclusions the claimed, alleging that by the misrepresentacontention that the county attorney had au- tions of plaintiff as to the rentals and operathority to make the agreement referred to, ting expenses of the property leased for the and that Cooper had a right to rely on its year immediately prior to the negotiations terms is of no consequence. The agreement defendant was induced to execute the lease, was without force, unless sanctioned by the and asking for rescission and $10,000 damcourt. It does not lie with defendant to say ages. The jury allowed something over $4,Cooper could rely on one part of the agree-000 damages as an offset upon the rent due, ment, and ignore that part which required rendering a verdict in favor of plaintiff for his appearance for trial after his discharge $886.94. Defendant appeals from the order from the army. denying him a new trial.

The evidence conclusively established that defendant, after learning of the deceit of which he complains, remained in possession of the leased premises and paid several installments of rent. Such conduct affirms the lease, and equity

The property leased is the Globe Building, a ten-story office building on the corner of Cedar and Fourth streets in the city of St. Paul. The term is for 99 years, from April 1, 1917, and the rent $12,000 a year, payable in installments of $1,000 per month in advance for the first five years, and thereafter semiannually. Possession was taken, and is still retained by defendant. The rent was paid without objection up to April, 1919. On the trial the fraudulent representations narrowed down to statements relating to the operating expenses of the building during

defendant claiming that these were reprethe year preceding the making of the lease; sented to be $15,500, whereas in fact they were over $19,500. As the case was submitted, the jury virtually accepted defendant's claim as true. On this appeal respondent cannot attack the verdict, and appellant does not take exception to the action of the jury within the limits prescribed by the court.

the trial court in three particulars: (1) ReThe errors assigned challenge the action of fusing to transfer the case to court calendar; (2) ruling that the evidence did not justify a 3. Fraud 35-Lessee may recover only dam-cancellation of the lease; and (3) charging ages sustained prior to discovery of fraud.

will not decree a rescission.

The rule of damages stated in Defiel v. Rosenberg, 144 Minn. 166, 174 N. W. 838, is adhered to, namely, that, where a lessee has been induced to execute a lease through misrepresentation and deceit of the lessor, the lessee may not after he has full knowledge of the fraud remain in possession and recover damages arising through the fraud practiced during the unexpired part of the term. He may recover all damages sustained up to the discovery of the fraud.

the jury that defendant could not recover damages subsequent to the time he with full knowledge of the misrepresentations continued in possession under the lease.

[1] No reversible error may be found in the refusal to transfer to the court calendar. Plaintiff's case was properly for the jury, and so was the counterclaim for damages. The motion to transfer was first made when the trial began; and we are not convinced that defendant was prejudiced by the posi

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(180 N.W.)

tion, evidently taken by the trial court, that [3] The damages recoverable under the the evidence should be taken and then it counterclaim were by the court's instructions could be decided whether the issues should confined to those arising prior to the discovbe determined by the court or by the jury.ery of the fraud and the affirmance of the If defendant be correct in the contention lease. The charge is in harmony with the that the evidence made out a case for rescis- rule announced in Defiel v. Rosenberg, 144 sion, he could have protected his rights by Minn. 166, 174 N. W. 838. But counsel earnmoving the court, either before or after ver- estly contends that the pronouncement of the dict, for findings on that issue. This was rule was not necessary to a decision and must not done. be regarded as obiter. It is also claimed that [2] But we are clear that the evidence con- the rule does not accord with other decisions clusively established an affirmance of the involving contracts partly executed. The lease by a continuing in possession and the rule was formulated advisedly upon mature payment of several installments of rent after consideration. The contention now made by discovery of the alleged misrepresentations defendant was there pressed to the utmost and fraud; hence equity could grant no re by forceful arguments of able attorneys. It lief. Bell v. Baker, 43 Minn. 86, 44 N. W. was not obiter, for the case was to be re676; Crooks v. Nippolt, 44 Minn. 239, 46 manded for trial. And to avoid a mistrial it N. W. 349; Marshall v. Gilman, 47 Minn. 131, was highly important to the parties, and their 49 N. W. 688; Parsons v. McKinley, 56 Minn. arguments so indicated, that the appeal 464, 57 N. W. 1134; Arcade Investment Co. should determine during what period damv. Hawley, 139 Minn. 27, 165 N. W. 477. De-ages might be recoverable. We are still of fendant is shown to have had years of ex- the opinion that the rule adopted works out perience in operating large office and business that just compensation which the law aims buildings. He was furnished by plaintiff to give a party who has been induced to enter with the rent roll of the building upon taking a long time lease by misrepresentation. The possession. From it he could not avoid see-instant case illustrates the injustice that ing that the rentals were not what he alleges might result from the rule defendant urges. plaintiff represented them to be. This ought The lease contains a provision giving defendto have aroused his suspicions as to the truth ant the absolute right to terminate the tenof representations in respect to the amount ancy any time after March 31, 1918, upon of the operating expenses, if in fact there payment of $10,000. Under defendant's thewere any representations at all upon which ory that a recovery could be had up to the he relied. Again, from the time of taking trial, we see no ground to refuse a recovery possession his confidential agent in charge of for the whole term. And at the rate that the premises furnished defendant with month- the jury awarded damages for the time to ly reports showing in detail the rental in- which they were limited, the recovery for the come and operating expenses. So that at the whole term would necessarily amount to a end of the first year of the lease he had a very large sum. The defendant could then full summary disclosing the total operating terminate the lease by the payment of the expenses to have exceeded $19,500 for that $10,000 and have a fortune to the good. Such year. Nevertheless he remained in possession, a result may well serve to cast a doubt upon paying promptly the monthly installments the justice and expediency of the rule conof rent up to April 1, 1919, without an in-tended for. It is firmly established in this timation of the existence of any cause for state that compensation, and not loss of barquestioning the validity of the lease; and gain, is the measure of damages in actions not until May 5, 1919, when importuned to founded on deceit inducing the making of a pay the rent in arrears, did he suggest a contract. Compensation is measured by the cause. In the argument it was asserted that difference in value between what was parted defendant did not have, and could not obtain, with and what was received. In the case of full knowledge of the falsity of the repre- a lease, where there are stated definite perisentations until the trial when plaintiff's ods for which a stipulated rent is to be paid, books and accounts could be inspected. It the amount of such rent for any one period seems to us that this argument is without ordinarily measures what the tenant parts much force, when defendant's business in gen- with, and the value of the use of the premiseral and his actual experience in particular es measures what he receives for that period. with this building is considered. It is not The tenant, with full knowledge of the deceit conceivable that after ascertaining the that has been practiced, should not be peramount of the operating expenses from April mitted thereafter to enter upon any subse1, 1917, to April 1, 1918, he could remain ig-quent rental interval period and hold in renorant as to the approximate amount of serve an action for damages for the deceit. those expenses for the preceding year, for he was in the business of conducting such buildings both years and no doubt was well posted as to the variation, if any, in the relative prices for the labor, commodities, and material that made up such expenses during the two years.

The law requires the one wronged to use diligence to prevent accumulation of damages. Morey v. Pierce, 14 Ill. App. 91. Or, as said in Defiel v. Rosenberg, supra, he is not entitled to "speculate upon the fraud and be the instrument of his own loss." For the purpose of general damages, each recurring

to labor.

Appeal from Municipal Court of St. Paul; John W. Finehout, Judge.

W. G. Foss and B. B. Meyers were convicted of violating an ordinance of the City of St. Paul relating to plumbing, and they appeal. Affirmed.

Stringer & Seymour, of St. Paul, for appellants. Arthur E. Nelson and Eugene M. O'Neill, both of St. Paul, for the State.

HOLT, J. Convicted of violating an ordinance of the city of St. Paul relating to plumbing, defendant appeals.

Section 406 of the ordinance reads:

rent payment marks what may be considered | prentices to have certificates of competency to as a beginning of the balance of the term, assist a certified plumber in the work; and it what has passed being wholly executed, what is not therefore open to the constitutional obis left being severed therefrom and wholly jection that it restricts unduly the free right executory. It is well settled in this state, since the decision in Thompson v. Libby, 36 Minn. 287, 31 N. W. 52, that if the deceit is discovered while a lease or any other contract is wholly executory, an action for damages will not lie. And it seems to us that the same rule should hold true as to future general damages that might accrue to a tenant who pays rent and remains in possession after knowledge of the deceit by which he was led to execute a lease; there being no special circumstances that would make it inexpedient to surrender possession. No special damages are involved in the instant case. We do not think Defiel v. Rosenberg, supra, is at all in conflict with prior decisions of this court. Haven v. Neal, 43 Minn. 315, 45 N. W. 612, was a contract for the purchase of logs. A large advance payment had been made and at least part of the logs were handled and sawed before the defrauded party ascertained the truth. The contract was not of a nature easily severable. Stearns v. Kennedy, 94 Minn. 439, 103 N. W. 212, Ritko v. Grove, 102 Minn. 312, 113 N. W. 639, Humphrey v. Sievers, 137 Minn. 373, 163 N. W. 737, and Townsend v. Jahr, 179 N. W. 486, all relate to sales or exchanges of land, where neither the occupancy nor payments of part of the purchase price resembles the occupancy and rents paid under a lease, in that the latter lends itself to severance so as to award just compensation for the part of the term occupied in ignorance of the deceit. After discovery of the deceit all damages not then actually inflicted must arise during and in the enjoyment of that period of the lease which is wholly executory.

The order is affirmed.

STATE v. FOSS et al. (No. 22037.) (Supreme Court of Minnesota. Dec. 3, 1920.)

(Syllabus by the Court.)

1. Licenses 42(4)-Evidence held to show defendants were doing business of a plumber without certificate.

"No person, company or corporation shall engage in or work at the business of plumbing either as a master or employing or as a journeyman plumber without first receiving a ceraminers as hereinafter provided for." tificate of competency from the board of ex

[1] The proof showed that defendant and B. B. Meyers, tried with defendant on a similar charge, were calking sewage pipes in a hospital then under construction in St. Paul, when discovered by the plumbing inspector of the city. The evidence warrants the conclusion that calking pipes of that sort is working at the business of plumbing. Defendant did not profess to be either a master, or an employing, or a journeyman plumber, or to have, or be entitled to, a certificate of competency. He claims to have been a mere helper doing the work under the supervision of his employer, a duly licensed plumber, and that what he did was work that properly could be done by a helper or apprentice. This is the main defense. It appears without dispute that the employer set these men to work in the morning and was with them until about half an hour before noon, when he left to obtain some tools. He had poured the lead into the joints of the pipe and had set these men to tamp the joints with oakum and make them tight, and had just left for the tools when the inspector arrived upon the scene. The evidence might have warranted the conclusion that the men were doing the work as mere helpers under the supervision of one entitled to work at the business of plumbing. But in holding defend

The evidence justified the court in finding that defendant in calking a joint of 'a sewage pipe was doing the business of a plumber, and was not a mere helper to a duly certified plum-ant guilty the court necessarily found that

ber.

2. Constitutional law 88-Ordinance relating to plumbing held not unconstitutional as unduly restricting the free right of labor.

The ordinance under which defendant was convicted does not require, and should not be construed to require, plumbers' helpers or ap

the men were not doing the work of helpers under the supervision of an authorized plumber. The conviction does not necessarily imply a construction of the ordinance so as to exclude helpers and apprentices from assisting in doing plumbing, or from learning, the trade by working under the immediate

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