Volume 23 — North Dakota Reports

Appeal by defendant from an order of the District Court for Williams County, Fisk, J., denying its motion to dismiss an action for failure to prosecute it to trial within a year after the order of reversal.

<p>Appeal by plaintiff from a judgment of the District Court for Sargent County, Allen, J., dismissing an action brought to recover on a contract of employment.</p>

Action under the statute to recover damages caused by death by wrongful act. Verdict directed in favor of defendant. Plaintiff appeals.

Appeal by defendant from a judgment of the District Court • for Dickey County, Áltén, Y., in plaintiff’s favor in an action brought to recover damages for personal injuries.

Appeal by defendant from a judgment of tbe District Court for Richland County, Frank P. Allen, J., and from an order denying a new trial in an action to recover damages for an alleged liability. The retraction was full and fair, and, independently of the statute, entitled to consideration in mitigation of damages. White v. Sun Pub. Co. 164 Ind. 426, 73 N. E. 890; Taylor v. Hearst, 107 Cal. 262, 40 Pac. 392. The retraction published was not full and fair.

Action for the wrongful conversion of money. Verdict and judgment for the plaintiff. Defendant appeals. Defendant could show under his general denial that plaintiff never had a cause of action. Hogen v. Klabo, 13 N. D. 319, 100 N. W. 847; Phoenix Mut. L. Ins. Co. v. Walrath, 53 Wis. 669, 10 N. W. 151; Bliss, Code PI. § 327; 1 Enc. PI. & Pr. 817, 819; Sodini v. Gaber, 101 Minn. 155, 111 N. W. 962; 31 Oyc. 680, 681.

Action to determine adverse claims to land and quiet title thereto. Judgment for defendant. Plaintiff appeals.

From aii order granting defendant’s motion for a change of the place of trial, plaintiff appeals. Judge Crawford was disqualified to act, and the making of the order was without authority of law, and gave Judge Nuchols no right to hear the application. Orcutt v. Conrad, 10 N. D. 431, 87 N. W. 982; Tiffany v. Lord, 65 N. Y. 310; Wheeler v. Lampman, 4 Johns. 481; Malcolm v. Rogers, 1 Cow. 1; Brett v. Brown, 13 Abb. Pr. N. S. 295; Yon Hesse v. Mackaye, 8 N. Y. Supp. 894.

Appeal by plaintiff from a judgment of the District Court for Bottineau. County; A. Cf. Burr, J., in defendants’ favor in a suit for the cancelation of tax certificates and to enjoin issue of deeds.

Appeal by defendants from a judgment of the District Court for Sargent County, Allen, J., in plaintiff’s favor in an action brought to recover damages for an assault and battery.

Appeal by defendant Stockwell from a judgment of the District Court for Grand Forks County, Templeton, J., in plaintiff’s favor in an action brought to recover certain unexpended balances retained by defendant under claim of ownership after expiration of his term of office. That portion of § 84 of the Constitution, “and all fees and profits arising from any of said offices shall be covered into the state treasury,” is not self-executing.

Appeal by defendant from a judgment of the District Court for Barnes County, E. T. Burke, J., denying his motion for judgment non obstante veredicto■, or for new trial, in an action to recover on two fire insurance policies. Defendant not liable when property of plaintiff destroyed by order of civil authority. Lycoming F. Ins. Co. v. Sehwenck, 95 Pa. 89, 40 Am. Rep. 629; Barton v. Home Ins. Co. 42 Mo. 156, 97 Am. Dec. 329; Dupin v. Mutual Ins. Co. 5 La.

A. Coffey, J. From a judgment quashing an alternative writ of mandamus, plaintiffs appeal. No provision in law providing for the relief prayed for by relators. State ex rel. Laird v. Gang, 10 N. D. 331, 87 N. W. 5. Existence of a de facto corporation cannot be collaterally assailed. Coler & Co. v. Dwigbt School Twp. 3 N. D. 249, 28 L.R.A. 649, 55 N. W. 587; State ex rel. Laird v. Gang, 10 N. D. 331, 87 N. W. 5.

<p>Contracts — mutuality — specific performance.</p> <p>1. Plaintiff has acquired two quarter sections of land from the government, which land he contracted to sell to one Kuchenbecker upon what is known as a contract for deed. Kuchenbecker, assuming to act as owner of the land, though without paying the full purchase price and receiving himself a deed therefor, made a similar contract to sell the said land to Kolb for some $850 more money than he was paying to Ugland. Kuchenbecker paid about one fifth of the purchase price • and defaulted. Kolb paid about the same amount upon his contract. After two years Ugland brings this action to quiet his title, proving that he had served notice of cancelation upon Kuchenbecker. Kolb defends the action and shows that he had offered to Ugland all of the money, excepting $150, which he wished to keep back to clear the title,— due upon Kuchenbecker contract. Ugland showed that at the time of the offer the contract between himself and Kuchenbecker had been assigned to one Brennan as security for a loan, and had never been redeemed. He also showed that the objections to his title were frivolous. It also appeared that Kuchenbecker had made a deed of .the premises to Kolb, but said deed was made after the assignment of his contract to Brennan, and had never beer, delivered to Kolb, but was made at a time when Kolb expected to borrow enough money upon the land- to pay Ugland in full; held:</p> <p>That there was no mutuality of contract between Ugland and Kolb, and as Kolb could not have been compelled to specifically perform to Ugland, neither should Ugland be compelled to perform to Kolb. Also that the contract could not be specifically performed until redeemed from Brennan. Kolb having no interest in the contract or land, the trial court properly quieted the title as against him.</p> <p>Brennan and Ugland, having made no appeal, are also precluded by the judgment.</p>

, overruling a judgment of the justice dismissing an action brought to recover a balance alleged to be due for services rendered by plaintiff and his wife to defendant.

Appeal by plaintiff from a judgment of tbe District Court for Sargent County, Frank P. Allen, J., in defendant’s favor in an action of •forcible detainer to recover possession of certain premises. Parol evidence not admissible to vary tbe written lease. Culver v. Wilkinson, 145 IT. S. 205, 36 L. ed. 676, 12 Sup. Ct.

<p>Chattel mortgages — actions — findings.</p> <p>1. A finding, in an action to foreclose a chattel mortgage, that the mortgagor has disposed of part of such mortgaged property and has failed to take proper care thereof and that the same is running down and deteriorating, is a finding of ultimate facts, and proper as far as it goes.</p> <p>Chattel mortgages — foreclosure — findings.</p> <p>2. In an action to foreclose more than one chattel mortgage the court must find the amount due on the debt secured by each mortgage separately.</p> <p>Chattel mortgages — foreclosure — findings — actions.</p> <p>3. In an action to foreclose more than one chattel mortgage, when the disposal or injury to the property, or its deteriorating in value, is relied upon as a ground for foreclosure, before the note secured is due, as to part only of the mortgages being foreclosed, separate findings should be made on these subjects .regarding the security of each mortgage, and whether the debt secured by each separate mortgage is insecure.</p> <p>Trial — findings.</p> <p>4. A finding of the amount due oil a note or notes is a conclusion of law.</p> <p>Chattel mortgages — foreclosure — judgment — actions.</p> <p>5. In an action to foreclose a chattel mortgage, or mortgages, the clerk has no power to enter a personal judgment against the defendant unless the amount due on the indebtedness is found and a personal judgment ordered therefor or for a deficiency.</p> <p>Chattel mortgages — foreclosure — judgment — actions.</p> <p>6. Sec. 7516, Rev. Codes 1905, prescribes certain essential elements of a valid judgment foreclosing a lien on personal property, and its terms should be followed; and a judgment which fails to conform to the requirements of that section in material respects cannot be sustained.</p>

<p>Appeal by defendant from a judgment of the District Court for Burleigh County, Winchester, J.,-adjudging him guilty of contempt of court.</p>

Appeal by defendant from a judgment of tbe District Court for Richland County, Allan, J., in plaintiff’s favor in an action brought to recover for injuries to plaintiff’s horses, alleged to have been caused by defendant’s negligence. Railway owes no duty to the animal or its owner to keep a lookout. Bostwick v. Minneapolis & P. R. Co. 2 N. D. 440, 51 N. W. 781; Hodgins v. Minneapolis, St. P. & S. Ste.

Appeal by plaintiff from a judgment of the District Court for Grand Forks County, Templeton, J., in defendant’s favor in an action brought to recover possession of certain land and for an accounting of rents and profits. Presumption of death arises when it is proven that person has not, for seven years or more, been heard from at the place he left, by those who might reasonably be expected to hear from him. Greenl.

Action to set aside a transfer of stock, and for an accounting. Defendants demurred to the complaint, and from an order overruling such demurrers, defendants appeal. This is an appeal from an order overruling four demurrers to a complaint.

Appeal by plaintiff from a judgment of tbe District Court for Bichland County, Alien, J., in defendant’s favor in an action brought to recover for the conversion of certain property. Evidence admitted was hearsay and incompetent. Hopt v. Utah, 110 U. S. 574, 28 L. ed. 262, 4 Sup. Ct. Bep. '202, 4 Am. Grim. Bep. 417; I Greenl. Ev. p. 99, 1 Philipp’s, Ev. 169.; Mima Queen v. Hepburn, 7 Cranch, 290, 3 L. ed. 348, 6 Ene.

Appeal by defendant from a judgment of the District Court for Bottineau County, F. F: Fisk, I., in plaintiff’s favor in an action to foreclose a mortgage. Tbis is an action to foreclose a mortgage on certain land in Bottineau county.

Appeal by defendants from a judgment of tbe District Court for Ward County, E. T. Burlce, J., in plaintiff’s favor, and from an order denying a motion for judgment notwithstanding the verdict, or for a new trial, in an action brought to recover damages for the alleged negligent killing of plaintiff’s intestate. Common law marriages, so-called, cannot be entered into under the laws of this state. Norman v. Norman, 121 Cal. 620, 42 L.R.A. 343, 66 Am.

Templeton, Special Judge. Mandamus by tbe state, on tbe relation of Mountrail courty and others against Arne Amundson and others, as members of the board of county commissioners of the county of Ward. From the judgment directing the terms of settlement between the counties, both parties appeal.

Appeal by plaintiff from an order of tbe District Court for Cass County, Pollock, J., denying his motion for judgment notwithstanding the verdict, or for a new trial in an action to recover damages for injuries received in a collision. Statement of Facts.

Appeal by defendants from a judgment of the District Court for Grand Forks County; Son. Charles F. Templeton, J., in plaintiff’s favor in a garnishment action brought to recover a certain amount for .goods sold and delivered by plaintiff to defendants.

Appeal by plaintiff from an order of the District Court for Dickey County, Allen, L, denying his motion for vacation of a judgment in favor of defendant Hartzell in an action brought to quiet title to certain land. The appellant was not in fault, as S. G. Cady had ceased to be his attorney on the entering of judgment. 4 Cyc. 940; Berthold v. Fox, 21 Minn. 51; Smith v. Cunningham, 59 Kan. 552, 53 Pac. 760; Treasurers v. M’Dowell, 1 Hill, L. 184, 26 Am.

Appeal by plaintiff from an order of tbe District Court for Burleigh County, W. H. Winchester, J., denying his motion for new trial in an action brought to recover damages for injury to ice. Defendant had no right to excavate any part of plaintiff’s ice-house lot, or to drive his teams on or over any part of it. 28 Am. & Eng. Enc.

Appeal by defendant from a judgment of tbe District Court for Wells County, Goss, Special J., in plaintiff’s favor in a suit for an accounting and to redeem from a foreclosure sale.

E. Leighton, J. E. C. Tolley was convicted of criminal libel, and from an order denying Ms motion for new trial, be appeals. Tbe information was defective. State v. Habón, 21 N. D. 133, 129 N. W. 234; State v. Marcks, 3 N. D. 532, 58 N. W. 25; State v. Smith, 2 N. D. 515, 52 N. W. 320; People v. Alibez, 49 Cal. 452, 1 Am. Crim. Eep. 345; People v. Stock, 21 Misc. 147, 47 N. Y. Supp. 94; Tost v. Com. 5 Ky. L. Eep. 935; Hawkins v. Com. 70 S. W. 640, 24 Ky.

Appeal by defendant Conrant Company from a judgment of tbe District Court for Bottineau County; Crawford, Special Judge, in plaintiff’s favor and from an order denying a new trial in an action on certain checks. The business manager of a corporation does not have authority to bind the corporation as maker of commercial paper, unless authority has been specifically conferred upon him.

Defendant was convicted of the crime of grand larceny, and appeals. Conviction cannot be had upon the testimony of an accomplice, unless he is corroborated by such other evidence as tends to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense, or the circumstances thereof.

<p>Elections — nominations — suffrage — constitutional provisions.</p> <p>1. Chapter 213 of Session Laws of 1911, providing for party enrolment of electors by assessors before primary election, and prescribing the form of affidavit to be so required of each elector to entitle him to enrolment as a partisan, and to qualify him to vote at the coming primary election, construed and held:—</p> <p>The legislature has the right to require nomination to be made at primary elections by the use of a ballot, and may provide that such election shall be conducted within organized political parties, and may deny the right to vote to those electors not belonging to any organized political party, and may require as a reasonable test of party fealty that the elector shall subscribe an oath stating that he belongs to an organized political party, and requiring him to designate it therein by name.</p> <p>Note. — The authorities on the constitutionality of primary election laws are collated in a note to the above case as reported in 41 L.R.A.(N.S.) 132, which is supplementary to the note in 22 L.R.A.(N.S.) 1136, on the same subject.</p> <p>As to the constitutionality of legislation affecting party representation on official ballot, see note in 35 L.R.A.(N.S.) 353.</p> <p>For the question whether primary elections are elections within Constitution or statutes relating to elections generally, see note in 18 L.R.A.(N.S.) 412.</p> <p>As to constitutionality of a statute prohibiting the nominating, recommending, or censuring of specified officers by certain organizations or at designated elections, including primary elections, see note in 23 L.R.A. (N.S.) 839.</p> <p>The question of the constitutionality of legislation restricting candidates to one place on ballot is the subject of a note in 37 L.R.A.(N.S.) 825.</p> <p>(a) The law requiring such a test and making the required oath a condition precedent to the right of an elector to participate at the party primary election is not unconstitutional as prescribing an added franchise requirement, or as restricting the right of suffrage, or as violating the secrecy of the ballot, within the meaning of §§ 121, 122, and 129 of our state Constitution.</p> <p>(b) Said constitutional provisions, a part of art. 5 of the state Constitution, are applicable to the extent of limiting such primary election to constitutional electors and guarantying a secret ballot at primaries, but are limited in application by the purpose for whieh the election is by the legislature provided, the power to declare such purpose being reserved to it by said constitutional provisions. The constitutional rights of the elector are not paramount to such contemplated legislative purpose; and a party primary election law is not rendered unconstitutional because the right of suffrage at the primary is made dependent upon the assertion of a partisan belief by the elector, and because such election regulations forbid an elector from voting who belongs to no political party.</p> <p>Elections — nominations — electors.</p> <p>2. The portion of the statutory affidavit exacted upon enrolment, providing for proof of naturalization, is unconstitutional, because in operation it disfranchises from participating in any party primary election those electors naturalized by being within the terms of the act of Congress naturalizing certain foreign born residents within the limits of this state at the time of its admission into the Union. That said act is likewise void because it excludes those electors similarly naturalized by act of Congress because of having been residents of other states upon the admission of such states into the Union. Except as to such feature of the statute requiring proof of naturalization, the statute remains unaffected and in force.</p> <p>Elections — nominations — electors.</p> <p>3. The statute in question contemplates that both the minor reaching majority on or prior to election day, but after the return of' the enrolment books to the auditor, and any male person of legal age naturalized by court decree during said period, may vote, and does not discriminate between the new voter and such naturalized elector, both of whom may participate at the primary election upon taking the oath required by the act, and similar to that provided by § 738, Rev. Codes 1905.</p>

Appeal by plaintiff from a judgment of the District Court for Burleigh County; Winchester, I., in defendants’ favor in an action brought to oust defendants from office. A provision for the redistricting of a county or the reapportionment of election districts is wholly prospective in its operation. State ex rel.

On an application for writ of certiorari an order to show canse was issued, on petitioner’s application, returnable before this court, and on hearing is quashed and the writ denied.

If the ownership of the property is other than sole and unconditional, the policy is void. Brown v. Commercial F. Ins. Co. 86 Ala. 189, 5 So. 500; Lasher v. St. Joseph F. & M. Ins. Co. 86 N. Y. 423; Rochester German Ins. Oo. v. Schmidt, 89 O. O. A. 333, 162 Fed. 447; Cole v. Niagara F. Ins. Co. 126 Mo. App. 134, 103 S. W. 569; Hebner v. Palatine Ins. Co. 55 111. App. 275;'Westchester F. Ins.

<p>Appeal from the District Court of Eamsey county; Cowan, J.</p>

Appeal by defendant from a judgment of the District Court for Burleigh County, 8. L. Nuchols, Special Judge, in plaintiff’s favor, in an action brought to recover expenses incurred in lowering its water main. Ordinance 188 by imposing an additional burden and obligation infringed upon and impaired defendant’s vested rights arising out of ordinance 83, and, to the extent of such impairment, is void. 15 Am. & Eng. Enc. Law, 2d.ed. p. 1032; Louisiana ex rel.

<p>Highways — obstruction — highways created by prescription.</p> <p>Section 1 of chapter 112, Laws of 1897, being § 1346 of the Revised Codes of 1905, which provides that “all public roads and highways within -this state which have been opened and in use as such, and included in a road district in the town in which the same are respectively situated, during twenty years next preceding the time when this article shall take eifect, are hereby declared to be public roads or highways, and confirmed and established as such whether the same have been lawfully laid out, established, and opened, or not,” can only be made to apply retractively to roads which have been laid out by the proper authorities, but in some defective manner. It cannot be construed so as to apply retroactively and create highways by prescription based upon an adverse user by the public which merely covers a period of twenty years prior to its enactment. In order that highways by prescription may be claimed by the public, the adverse -use must have dated back for twenty years prior to January 1, 1896, when § 1050, Eev. Codes 1895, went into effect, or have continued for twenty years after March 29, 1897, when chapter 112, Laws of 1897, went into operation.</p> <p>Note. — On the question of the establishment of a highway by prescription, see note in 57 Am. St. Rep. 746.</p>

Appeal by defendant from a judgment of tbe District Court for McIntosh County, Allen, J., in plaintiff’s favor in an action brought to recover damages for alienation of her husband’s affections. This is an action for damages brought by a wife for the alienation of her husband’s affections. The ease was tried to a jury, and the trial resulted in a verdict for plaintiff for $4,000, and judgment was entered thereon.

Appeal by plaintiff from a judgment of the District Court for Ranson County, Allenj J., holding valid certain drainage assessment taxes levied against plaintiff’s property. The petition presented to the Richland county board was insufficient to confer jurisdiction to establish the drain.

Appeal by defendant from a judgment of the District Court for McIntosh County; Allen, J., in plaintiff’s favor in an action brought to recover damages for personal injuries. It must appear that the injuries were wantonly, maliciously, and intentionally inflicted, before plaintiff is entitled to exemplary damages. Shoemaker v. Sonju, 15 N. D. 518, 108 N. W. 42, 11 Ann. Oas. 1173; Selland v. Nelson, 22 N. D. 14, 132 N. W. 220.

Appeal by plaintiffs from a judgment of the District Court for Towner County, Butiz, Special Judge, in defendants’ favor in an action brought to quiet title to certain land. Possession of real property under any lien, without the consent of the owner, is piratical, and the owner may recover his property, regardless of the lien.

O. Orawford, J. Defendant was convicted of the crime of rape in the second degree, and appeals. Defendant was convicted of the crime of rape in the second degree.

<p>Appeal and error — disposition of cause — new. trial ordered in the district court.</p> <p>See. 7229, Revised Codes of 1905, providing for trials de novo in the supreme court on all appeals in oases not properly triable with a jury, also provides that the supreme court may, if it deems such course necessary to the accomplishment of justice, order a new trial of the action.</p> <p>Held, that where, as in the case at bar, the record is in such condition that an intelligent disposition of the case in this court is rendered impossible on account of the vague, indefinite, and uncertain state of the testimony, a new trial will be ordered in the district court.</p>

Appeal by defendant from a judgment of tbe District Court for Sargent County; Frank F. Allen, J., in plaintiffs’ favor in an action brought to quiet title to certain real estate. Action to determine adverse claims to real property. The complaint is substantially in the statutory form.

Appeal by relators from a judgment of the District Court for Ward County; Goss, J., quashing a writ of mandamus to compel defendant to issue to relators a certificate of redemption on certain property. The record made by relators on their offer to redeem was sufficient on its face. North Dakota Horse & Cattle Co. v. Serumgard, 17 N. D. 466, 29 L.R.A.(N.S.) 508, 138 Am.

Judgment for defendants. The defendants- herein constitute the state board of normal school trustees, provided for by chap. 61 of the Laws of 1911. Pursuant to the provisions of chap. 22, Laws of 1911, said board proceeded to select a site for the normal school to be located at the city of Minot.

Templeton, J. From an order directing the cancelation of a judgment against defendant and owned by plaintiff, the latter appeals.

Appeal by defendant from a judgment of tbe District Court for Pembina County; Burr, J., in plaintiff’s favor in an action for the renewal of a domestic money judgment held by plaintiff against defendant. After ten years the judgment is absolutely extinguished for all purposes. Merchants Nat. Bank v. Braitbwaite, Y N. D. 858, 66 Am. St. Pep. 653, Y5 N. W. 244; Lamberton v. Grant, 94 Me. 508, 80 Am. St. Pep. 415, 48 Atl. 12Y; Berkley v.' Tootle, 163 Mo. 584, 85 Am.

<p>Principal and surety — remedies of surety — action for contribution will not lie.</p> <p>1. Defendant was requested by one T. to become his surety upon a negotiable promissory note. He declined until T. should obtain plaintiff to sign first. This information was conveyed to plaintiff who signed as surety, and thereupon defendant also signed as a surety. Later, and after judgment upon the note, plaintiff paid the note, and brings this suit for contribution. Held, that while plaintiff and defendant were cosureties as to the payee of the note, yet as between themselves such relation did not exist, but that defendant was a surety for both T. and the plaintiff, and plaintiff was a principal as to defendant.</p> <p>Therefore an action for contribution will not lie. This principle is supported by the great,weight of the common law, and has been enacted into the statute law of this state with the new negotiable instrument law. See §§ 6366 and 6370, Revised Codes 1905.</p> <p>Evidence — negotiable paper — principal and surety — liability of indorsers.</p> <p>2. Indorsers of negotiable paper,, as respects one another, are prima facie liable in the order in which they indorse, but evidence is admissible to show that each has agreed to be liable for the principal debtor alone, and therefore that all indorsers are cosureties; but in the case at bar plaintiff has failed to show any such agreement, and on the contrary what evidence was offered tended to show that plaintiff and defendant both understood that the liability of plaintiff should be for T. alone, and the liability of defendant should be for T. and plaintiff.</p> <p>Note. — For the right of one surety to enforce contribution from another, and the remedies for its enforcement, see notes in 10 Am. St. Rep. 639, and 70 Am. St. Rep. 450.</p>

Action upon a surety bond to recover damages caused by the alleged breach c: subcontract to perform work. Verdict and judgment for plaintiff. Defendant appeals. This is an action on a bond and against the defendant surety company to recover damages for the breach of a subcontract to excavate a portion of a drainage ditch.

Appeal by plaintiff from a judgment of tbe District Court, for Benson County; Cowan, J., in defendant’s favor in an action brought to foreclose a mechanics’ lien. The land was purchased subsequently to the filing of the lien herein by Spaulding from Targeson, and he took it subject to plaintiff’s lien. H. C. Behrens Lumber Co. v. Lager, 128 N. W. 698. Plaintiff’s lien attached to nothing but Haney’s interest.

<p>Executors and administrators — claims against decedent’s estate.</p> <p>1. Section 8105, providing that if suit is not brought on a rejected claim against a decedent’s estate within three months after rejection “the claim is forever barred,” declares a statute of nonclaim.</p> <p>Executors and administrator's — claims against decedent’s estate — limitations — waiver — nonclaim.</p> <p>2. The provisions of this statute cannot be waived by an administrator by demurring to a complaint; and a demurrer cannot constitute or be construed as a waiver in law of the administrator’s right to plead by answer such statute of nonclaim as a defense.</p> <p>Executors and administrators — statutes of - limitation — pleading — actions.</p> <p>3. Section 6770, providing that the objection that the statutes of limitations have barred recovery on a debt can be taken only by answer, has no application to this statute of nonclaim.</p> <p>Executors and administrators — actions — defenses.</p> <p>4. It is the duty of an administrator to interpose a defense under said statute whenever available.</p> <p>Demurrer overruled — amendment of answer —statute of nonclaim.</p> <p>5. Demurrer to complaint ordered overruled, but with leave to defendant to plead by answer the defense of the statute of nonclaim.</p>

<p>Sovereignty of state — writ of mandamus — private relator.</p> <p>1. Where a question is publici juris and directly affects the sovereignty of the state or the franchise rights and prerogatives of its citizens, this court will issue its prerogative writ of mandamus on the relation of a private relator, although the attorney general refuses to make the application or to approve the same.</p> <p>Elections — county auditors — instructions to- election officers.</p> <p>2. Section 621, Revised Codes 1905, requires each county auditor to cause to be printed and furnished to the various election officers cards containing full instructions to electors, etc.</p> <p>Held, that where , the statute relative to certain instructions is ambiguous, it is not a compliance with § 621 to print on such cards the mere language of the statute. Such instruction should be sufficiently explioit so as to fully inform the electors of the proper method of preparing their ballots.</p> <p>Voters — second choice permissive — validity of votes.</p> <p>3. Chapter 212, Laws 1911, is construed, and it is held that the provisions thereof relative to second choice voting are not mandatory, hut merely permissive, and that under such act it is wholly optional with the voter whether he shall exercise such'right, and a failure to vote for a second choice will not in any way affect the validity of his first choice vote.</p> <p>Note. — On the question who may be relators in mandamus proceeding in matter of public interest, see notes in 7 Am. St. Rep. 484, and 98 Am. St. Rep. 865. See also note in 105 Am. St. Rep. 122.</p>

<p>Municipal corporations — injuries to abutting proper!?/ — right of action — damages.</p> <p>1. A claim.' for damages,' based on injuries to abutting property occasioned, by and during the construction of a street grade on the street adjacent to. said property, is not such a claim as is enumerated in §§ 2703 and 2704, Revised Codes 1905, and on such a cause of action it is not necessary that the complaint show the filing with the city auditor of a claim for damages, with an abstract of the particulars thereof, mentioned in §§ 2703 and 2704.</p> <p>Municipal corporations — injuries to abutting property — action against city —complaint.</p> <p>2. Complaint examined and held not to state a cause of action.</p> <p>Note. — On the question of the necessity of written notice as to defect as condition of liability of municipal corporation for injuries due to the positive act of its officers or servants, see note in 23 L.R.A.(N.S.) 282. See also note in 103 Am. St. Rep. 280. And for statutes requiring presentation of claims against municipality, see note in 55 Am. St. Rep. 204.</p> <p>As to the liability of a municipal corporation for damming back surface water-by grading of streets, see notes in 29 L.R.A. (N.S.) 126, and 30 Am. St. Rep. 390.. And upon the liability for injuries to adjacent property by grading streets, see; note in 34 Am. St. Rep. 847. '</p>

Appeal by defendants from a judgment of the District Court for Stutsman County; J. A. Coffey, J., in plaintiff’s favor in an action brought to foreclose a mortgage. There was an entire failure of consideration for the notes and mortgage given by defendants, and made the basis of plaintiff’s cause of action. Slater v. Foster, 62' Minn. 150, 64 N. W. 161; Snyder v. Kurtz, 61 Iowa, 593, 16 N. W. 722; Rowe v. Blanchard, 18 Wis. 441, 86 Am.

Appeal by defendants from a judgment of the District Court' for Pierce County; A. G. Burr, J., in plaintiff’s favor in an action brought to enforce specific performance of a contract for the sale of certain property and to quiet title. Action for specific performance of a contract for the sale and purchase of certain real property, and also to quiet title.

Appeal by interveners from a judgment of the District Court for Billings County, Templeton, .1., in plaintiff’s favor in a proceeding to test the correctness of certain election returns. Sheets of paper upon which was recorded the result of the county division votes became a part of the official canvass when folded and placed between the leaves thereof. State ex rel. Sunderall v. McKenzie, 10 N. D. 132, 86 N.. W. 231.

Appeal by plaintiffs from a judgment of the District Court for Cass County, Polloch, J., dismissing an action brought to enjoin the construction of a drain. Failure to comply .with the statutory requirements in taking steps for the establishment of drains renders the assessment invalid. 2 Page & J. Taxn. §§ 770, 777; Fraser v. Mulany, 129 Wis. 377, 109 N. W. 139; 1 Cooley, Taxn. 3d ed. 631, 632.

Appeal by plaintiff from a judgment of the County Court of Stutsman County, Marion Gonlclin, J., in defendant’s favor in an action under an alleged contract to recover salary as a school teacher.

<p>Garnishment — application to he relieved from default judgment — discretion of trial court.</p> <p>Respondent, who was an ignorant German of very limited education and wholly unfamiliar with court proceedings, and not comprehending or understanding that he had been sued as a garnishee, suffered a default judgment to be taken against him. Thereafter and in due time he made application to be relieved from such default, basing such application upon his affidavit, setting forth the above facts, and also that he was not at the time such summons was served, nor has he at any time since, been indebted to the defendant in any sum. The trial court granted such application upon condition that respondent pay to plaintiff as costs the sum of $25.</p> <p>Weld, for reasons stated in the opinion, that in making the order appealed from the district court did not abuse the discretion vested in it, and that accordingly this court will not interfere With the action of the trial court.</p>

Appeal by defendant from a judgment of the County Court for Ward County, N. Davis, J., in plaintiff’s favor, and from an order denying a new trial in an action to recover a balance claimed to be due for certain seed wheat alleged to have been sold and delivered by plaintiff to defendant.

<p>Corporations — negotiable instruments — statutory provision — action by assignee of note.</p> <p>1. The defendant as “the maker of a negotiable instrument, engaged that he will pay it according to its tenor, and admits the existence of the payee.” Revised Codes 1905, See. 6362. Held, that under this provision, on the facts of this case, it became unnecessary for plaintiff endorsee or assignee of a promissory note payable to the order of the N. I. Ry. Co. to prove the incorporation of the payee.</p> <p>Appeal and error — amendment of pleading nonprejudicial.</p> <p>2. This action is on a negotiable promissory note payable to the order of the.payee therein named. Plaintiff brought suit thereon as assignee thereof. Defendant offered no evidence showing any equities in his favor or any defense against the note if in the hands of the original payee. After both parties had rested plaintiff asked permission to amend by changing the word “assigned” to “endorsed.” Held, that under'the facts and in the absence of any evidence showing a defense it was' immaterial whether he held it as assignee or indorsee; and that the granting of such amendment was nonprejudicial.</p> <p>Promissory notes — real parties in interest — actions.</p> <p>3. The possession of a promissory note payable to the order of the payee by an assignee, proof of payment of a valuable consideration therefor to the payee by -the plaintiff holder, and failure’to show any defense, renders the maker liable to the plaintiff assignee, particularly under our statute requiring actions to be brought in the name of the real party in interest.</p>

<p>Principal and agent — contract — liability.</p> <p>1. Plaintiff and defendants entered into a contract in writing whereby defendants were constituted the agents of plaintiff -for the sale of machinery manufactured and handled by it, in certain territory in this state. The contract fixed the prices at which the machinery was to be furnished defendants, the terms on which it might be sold by them, how commissions should be paid to them, and contained a provision that defendants should not deliver or use any machinery covered by the contract until a regular order should be taken on one of the plaintiff's blank orders, nor until fully settled for by the purchaser, in cash or by notes, and that in case defendants should deliver any such machinery to any customer or other person before taking a written order therefrom or before such machinery should be fully paid for by cash or notes, the defendants would pay to said plaintiff on demand, the net list price of such machinery, and waive all claims under the contract of warranty by plaintiff on any machinery so delivered without settlement.</p> <p>Such agency contract also provided that' when any traveling agent or employee of the plaintiff should in any way render any assistance to the defendants in making sales, or otherwise, he should be considered solely the agent or employee of the defendants, and no act of such agent or employee should in any way bind plaintiff. The evidence received is without conflict in any material respect, and shows that one Lake, traveling agent of the plaintiff, with the consent and advice of defendants, made a special price to a third party on certain machinery included in such agency contract, for the purpose of introducing it in defendants’ territory. Defendants completed negotiations for the sale thereof, and obtained the signature of the purchasers to the order. The machinery was shipped to defendants, accompanied by a draft on the purchaser, attached to the bill of lading. It was to be a cash sale. Defendants delivered such machinery without settlement of any kind. Held: that the facts bring the sale within the terms of the agency contract recited, and render defendants liable, as a matter of law, for the price of such machinery, and that by delivering the same without settlement they waived any claim for breach of warranty, and that the trial court erred in submitting the question as to who made the sale, to the jury.</p> <p>Facts relating to contract.</p> <p>2. For other facts relating to the contract and bearing upon this decision, see opinion.</p>

Appeal by defendant from an order of tbe District Court for Stutsman County, BurJce, J., denying his application for the vacation of the judgment in an action to recover damages for an assault and battery. The plaintiff brought this action against the defendant, charging him with assault and battery committed on the 11th of September, 1909, and alleges the damages as $10,000, and prays judgment accordingly.

<p>Schools and school districts — teachers — contract — statutory provision.</p> <p>Under the school laws of this state, as revised and re-enacted in chapter 266, Laws 1911, a contract otherwise duly entered into between a school board and a teacher is not void or voidable merely because, at the date of such contract, the teacher did not hold a certificate or permit qualifying him to teach. The case of Hosmer v. Sheldon School Dist. 4 N. D. 197, 25 L.R.A. 383, 50 Am. St. Rep. 639, 59 N. W. 1035, is differentiated on the ground of a change in the statute.</p> <p>Note. — The authorities on the effect of a contract by a teacher without license or certificate of qualification are collated in a note to the above case as reported in 42 L.R.A.(N.S.) 412.</p> <p>As to the right of school teachers to pay during absence, see note in 38 L.R.A. (N.S.) 513.</p> <p>For cases on the right of teachers to salary during temporary interruption of school in term time for causes other than their own act or omission, see note in 50 L.R.A. 371.</p> <p>On the question of the interference by courts with revocation of school teacher’s license, see note in 15 L.R.A.(N.S.) 1147.</p>

Appeal by defendant from an ordér of. the County Court for Ward County; N. Davis, J., overruling a demurrer to the complaint in an action brought to recover for professional services for the support of the poor of Ward County. - Where a claim against the county is presented to the Board of Supervisors and they allow a part of it and reject the rest, a claimant accepting the portion allowed, knowing that the rest has been rejected, cannot recover in an action, the portion…

Appeal by defendant from a judgment of the District Court for Towner County, Cowan, J., in plaintiff’s favor in an action brought to recover damages for personal injuries alleged to have been caused by defendant’s negligence. Respondent involuntarily and of necessity became a passenger in the car in which he was entrapped hy the negligent operation and management of the appellant railway company’s cars and trains.

Appeal by relators from an order of tbe- District Court for Burke County, Templeton, J., refusing to issue a writ of mandamus to compel defendants to canvass tbe votes of omitted precincts. Burke county was organized in July, 1910, from territory theretofore a part of Ward county. At tbe general election held November 8, 1910, tbe question of a permanent county seat was submitted to tbe electors.

Action to quiet title to an undivided half interest in a well, as an interest in real property, and for further equitable relief. Judgment for defendant. Plaintiff appeals.

Appeal by plaintiff from an order of tbe District Court for Stark County; W. C. Crawford, J., vacating the judgment in bis favor in an action to recover possession of two borses.

Appeal by defendant from a judgment of the District Court for Pierce County; John F. Cowan, Special Judge, and from an order denying its motion for new trial in an action to recover an amount due plaintiffs upon a loan negotiated with the defendant.

<p>Elections — contests of nominations — affidavit of contestant.</p> <p>The provisions of chap. 109, known as the primary election law, in so far as they relate to contests of nominations, construed and held, that such contests must be initiated by serving upon the contestee within ten days after the completion of the canvass of the ballots, an affidavit of contest setting forth the grounds therefor, and that the affidavit mentioned in § 31 of said act, which may he made on information and belief as a basis for procuring an order for a recount of the ballots, is not the affidavit of contest elsewhere referred to in said section.</p>