Volume 27 — North Dakota Reports

Action to quiet title, to have a deed declared a mortgage, and for an accounting. Findings and judgment for plaintiff and respondent. Statement by Bruce, J. This is an action to .have a deed of real estate declared a mortgage, and for an accounting in relation to a number of transactions during which, and to secure which, the deed was given.

Action by above-named respondents to enjoin the city of Grand Forks and its officers from levying and collecting taxes and exercising jurisdiction over certain territory attempted to be annexed to said city.

Erom a judgment of the District Court of Billings County, now Golden Valley County, Crawford, J\, entered after motion to strike, and the subsequent overruling of a demurrer of the' owner defendant, the owner appeals. A counterclaim must be such a claim in favor of the defendant and against the plaintiff, between whom a several judgment might be had in the case. Rev. Codes 1905, § 6860; 1 Pom.

Cowan, J. Action to determine adverse claims to real property. From a judgment in plaintiffs favor, defendant appeals. The ten-year statute should bar the plaintiff. Kev. Codes 1905, § 4924; Power v. Etching, 10 N. D. 254, 88 Am.

Section 8506 of the Revised Codes of 1905 makes it obligatory to serve an answer only when the judgment from which appeal is taken was by default. In this ease there was no default. 13 Cyc. 759. When a change of venue is had in justice court, it is the duty of the justice to whose court the case is taken, to notify both parties of the time and place of trial. Such notice must be served on the party.

<p>Evidence — recovery — mechanics’ lien — foreclosure — contract — owner — authorized agent — knowledge — ratification.</p> <p>Evidence examined, and held insufficient to establish a right to recover, it not appearing that the purported improvement for which the mechanics’ lien was claimed and is sought to be foreclosed, a well, was dug under an express contract contract with the owner or his authorized agent; nor is it established that defendant, before the completion of the work, had knowledge that the same was being done, or that he has subsequently ratified the same.</p>

Original application to this Court for the issuance of its writ prohibiting and enjoining the Commissioner of Insurance of the State from putting into effect the provisions of chap. 194, Laws of North Dakota for 1913, requiring him to establish a bonding department to go into operation on the 1st day of January, 1914.

The court erred in refusing to grant appellants’ motion for a directed verdict. The plaintiff’s negligence clearly appeared from the evidence and circumstances, and it was a law question which the court should have resolved in defendants’ favor. Heckman v. Evenson, 7 N. D. 173, 73 N. W. 427. The plaintiff was guilty of such contributory negligence as to clearly establish a proximate cause of the injury.

A prior unrecorded lien against the land in question, of which the judgment creditor had no knowledge or notice, will be postponed to the lien of the judgment. Black, Judgm. 2d ed. § 446, and cases cited; Tiffany, Beal Prop. p. 1319; Perkins v. Adams, 16 Colo. App. 96, 63 Pac. 792; Teller v. Hill, 18 Colo. App. 509, 72 Pae. 811; Berryhill v. Smith, 59 Minn. 285, 61 N. W. 144; Hall v. Sauntry, 72 Minn. 420, 71 Am.

F. Templeton, J* From an order granting a new trial, defendant appeals. The action for money had and received only lies in those cases where the defendant has received money, or its equivalent which in equity and good conscience belongs to the plaintiff. Krump v. First State Bank, 8 N. D. 75, 76 N. W. 995; Logan v. Freerks, 14 N. D. 127, 103 N. W. 426; Martin ,v. Toyer, 19 N. D. 504, 125 N. W. 1027; Siems v. Pierre Sav. Bank, 7' S.. D. 338, 64 N. W. 167; 15 Am. & Eng. Enc.

Statement by Bruce, J. The plaintiffs herein as administrators of the estate of Gottlieh J. Dobler, deceased, paid under protest to the county treasurer of LaMoure county the statutory probate fees, amounting in ,the case to $335, and prescribed by § 2589, Bev.

Application of Frank ITendersen, held on bail and arrest proceedings, for writ of habeas corpus. After full hearing the writ is denied and the petitioner remanded to custody. On the question of intention we must strongly rely upon the declarations of the. party, though they are not conclusive. Pacific Mut. L. Ins. Co. v. Tompkins, 41 C. O. A. 488, 101 Fed. 539; State ex rel. Hattabaugh v. Boynton, 140 Wis. 89, 121 N. W. 887, 17 Ann. Cas. 618.

Criminal information for keeping intoxicating liquors for sale as a beverage. Defendant convicted. Defendant appeals. Statement by Bruce, J. Defendant was convicted of the offense of keeping intoxicating liquors for sale as a beverage contrary to the provisions of the statute, and has appealed to this court both from the judgment and from the order denying the motion for a new trial.

<p>As early as chapter 72, Sess. Laws 1899, North Dakota has each year enacted legislation upon the subject of pure foods and honest weights and measures. The 1907 act provides that every package, bottle, or container should bear the true net weight of the product. Chapter 236, Sess. Laws 1911, provides that every article of food or beverage as defined in the statutes of this state shall be sold by weight, measure, or numerical count, and labeled in accordance with the provisions of the laws of this state; that all weights shall be net, excluding the wrapper or container, and that every lot of lard, lard compound, or lard substitute, unless sold in bulk, shall be put up in pails or containers holding ,1, 3, or 5 pounds net weight or some whole multiple of these numbers, and not any fraction thereof. Defendant is a corporation having packing houses in Chicago, Omaha, and other large cities, and maintaining a branch establishment in the city of Eargo, North Dakota, to which its goods are shipped in carload lots to be distributed therefrom. In October, 1911, the state food commissioner went to this branch establishment in Eargo and asked to purchase 3 pounds of lard. He was sold a pail containing 2 pounds and 6 ounces. The sale and the resultant arrest were made to test the constitutionality of the 1911 law. The defendant claimed that the law was unconstitutional for seven reasons, the first reason being subdivided into six parts.</p> <p>Unconstitutional law — arbitrary — legislature — courts — interference — burden on person attacking law — beyond reasonable doubt — prejudice — profit to middleman — weights and measures.</p> <p>1. Plaintiff’s contention is that the law is unconstitutional because it is arbitrary, unreasonable, and not justified under the police powers of the state, (a) It is contended that the 1911 law was unnecessary because the 1907 law providing for the display of net weights was ample to protect the consumer against fraud. Held, that the legislature has primarily the choice of laws regulating weights, and the court will not interfere with this choice. The burden is upon the person attacking the constitutionality of the law to show beyond a reasonable doubt that the Constitution has been violated, that in the ease at bar the defendant has failed in his proof, there being many reasons for the 1911 enactment, (b) It is contended that the law is unreasonable because it interferes with a custom of the lard industry extending over a period of more than thirty years. Held, that this is no objection to the law. The fact that an abuse has existed for thirty years does not foreclose the state from an attempt to regulate the same, (c) It is contended that the law is unreasonable because it imposes an additional expense upon the packers. Held, upon an examination of the evidence, that this contention is not well founded. The defendant is already supplying a private'firm with net-weight pails that would comply with the laws of North Dakota. No reason is shown why those pails could not be lithographed with the Armour brand and used in North Dakota, (d) It is further urged that the law is unnecessary and unreasonable because in any event the customers are not prejudiced. That they are paying merely the price of bulk lard plus the extra expense of the tin pails. Held, upon an examination of the evidence, that the consumer pays more than the mere cost of the container. This cost includes expensive advertising upon the pail itself, and a probable profit to the middlemen upon the cost of the pail as well as of the lard, (e) It is urged that the law is unreasonable as interfering with the regular custom of all trades, it being contended that butchers and grocers include the weight of the paper bag with the goods sold. Held, that even if true it furnishes no reason why laws should not be enacted to regulate this abuse, (f) It is contended that the enforcement of this law will drive the packers to use bulk lard only, to the detriment of the commodity. Held, íhat from the evidence, the packers never furnished over 40 per cent of the lard to the trade in this state, and this defendant furnishes but between 5 per cent and 10 per cent of the lard used, and .even should it withdraw from the state it would not materially affect the lard industry. The authorities upon the subject of the control of weights and measures by compelling even weights in containers are collected in the opinion.</p> <p>Note. — On the general question of the power to require weight of package to be indicated upon it, see note in 17 L.R.A.(N.S.) 684. And as to the constitutionality of discriminations in statutory regulations concerning food products, see note in 3-i L.R.A.(N.S.) 650.</p> <p>Constitutional guaranties — freedom of contract — equal protection — police power — private rights — public — protection.</p> <p>2. The law of 1911 does not interfere with the guaranties of the Constitution relative to the right of freedom of contract and the equal protection of the law. Under the police power, the state can interfere with private rights when necessary to protect the public from fraud or the opportunity for fraud. Whatever injury one particular citizen may suffer is compensated to him by the general protection afforded him against other evils, by such police power.</p> <p>Due process of law — taking of property without.</p> <p>3. Said statute does not constitute the taking of property without due process of law.</p> <p>Lard industry — other' articles of food — fraud — sale of foods.</p> <p>4. The claim of appellant that the lard industry is singled out from all articles of food, and subjected to regulation, is not supported by the evidence in this ease. Every article of food or beverage, as well as ordinary articles of commerce, such as paints, formaldehyde, Paris green, etc., are regulated by the same or similar acts. The 1911 law specifically mentions lard, lard compounds, and lard substitutes, and the manner of their regulation in pails, but this is a mere incident of the law. The object of the law is to prevent the opportunity for fraud in the sale of all articles of food.</p> <p>Commerce clause — Federal Constitution — original package — sale local or intrastate.</p> <p>5. The claim of the defendant that the law is in violation of the commerce clause of the Federal Constitution is not sustained. Congress has control of commerce between the several states, with foreign nations and among the Indian tribes, while the states have control over intrastate commerce. The pail of lard sold to the food commissioner was shipped into the state in a railway car, and was itself contained in a crate containing'20 similar pails. The original package was either the railway car or the crate, and had been broken prior to the sale. Tlius the sale was a local or intrastate transaction. The eases upon this phase are collected in the opinion.</p> <p>Interpretation — gross weights — repeal by judicial construction — courts.</p> <p>6. It is contended by defendant that the act should be given a reasonable interpretation, thus permitting the sale of gross-weight pails if labeled with the net weight. Held, that the import of the law is plain, and that the construction required by the defendant would result in a repeal of the law by judicial construction, which this court will not do.</p> <p>Congress — foods — weights — sale — intrastate — control of.</p> <p>7. It is contended that Congress has assumed control of the field of pure foods and weights, and therefore the laws of North Dakota upon the subject have become ineffectual. Under the fifth paragraph of this opinion it is held that the sale in question was an intrastate transaction, entirely within the control of the state, and entirely outside of the control of the United States.</p> <p>Upon consideration of the whole act it is held that the law is not unreasonable, and it in no manner prejudices the defendant, and is not in conflict with any of the enumerated provisions of the Constitution.</p>

<p>Appeal from the District Court of Barnes County, Coffey, J.</p>

<p>Warehouseman’s bond — action on — benefit oí all persons injured — resources of bond — conservation — suits — multiplicity.</p> <p>The action upon a warehouseman’s bond should be brought for the benefit of all persons injured, in order to conserve the resources of the bond and prevent multiplicity of suits. Phillips v. Semingson, 25 N. D. 460, 142 N. W. 47, followed.</p>

<p>Warehouseman’s bond — action on — benefit of all persons injured — resources of bond — conservation — suits — multiplicity.</p> <p>The action upon a warehouseman’s bond should be brought for the benefit of all persons injured, in order to conserve the resources of the bond and prevent multiplicity of suits. Phillips v. Semingson, 25 N. D. 460, 142 N. W. 47, followed.</p>

Action to foreclose a chattel mortgage. Judgment for plaintiff. Defendant appeals. Statement by Bruce, J. The complaint in this action set out the making and delivery of two promissory notes, that to secure the same a chattel mortgage had been executed by the defendant, and prayed for a foreclosure of the mortgage.

<p>Appealed from the Comity Court of Benson County, Liles, J.</p> <p>Statements made by outside, disinterested parties are wholly incompetent and immaterial; to make a person a party to an action, service of the summons upon him is necessary. Bunker v. Taylor, 10 S. D. 526, 74 N. W. 450.</p> <p>Tetrault was a hold over under the old lease, and the rights of the parties are fixed and controlled by such lease. Wadsworth v. Owens, 21 N. D. 255, 130 N W. 932.</p> <p>The grain had never been divided so as to change the vested title. Angelí v. Egger, 6 N. D. 391, 71 N. W. 547; Smith v. Atkins, 18 Vt, 461; Esdon v. Colburn, 28 Yt. 632, 67 Am. Dec. 730; Andrew v. Newcomb, 32 N. Y. 417; Consolidated Land & Irrig. Co. v. ITawley, 7 S. D. 229, 63 N. W. 904; Moulton v. Robinson, 27 N. H. 550; Lewis v. Lyman, 22 Pick. 437; Howell v. Foster, 65 Cal. 169, 3 Pac. 647; Griswold v. Cook, 46 Conn. 198; Taylor v. Bradley, 39 N. Y. 129, 100 Am. Dec. 415; Lloyd v. Powers, 4 Dak. 62, 22 N. W. 492; Meacham v. ITerndon, 86 Tenn. 366, 6 S. W. 741; Bidgood v. Monarch Elevator Co. 9 N. D. 627, 81 Am. St. Rep. 604, 84 N. W. 561; Simmons v. McConville, 19 N. D. 787, 125 N. W. 304; Wadsworth v. Owens, 21 N. D. 255, 130 N. W. 932.</p> <p>The title to the grain under the contract in this case remained in the owner of the land until an actual division of the grain. Walton v. Mattson, 22 N. D. 532, 135 N. W. 176.</p> <p>Demand and refusal are necessary in all trover cases, where defendant is rightfully in possession. 38 Cyc. 2032, note 75; cases from Ala.; Ark.; Colo.; Conn.; Ga.; 111.; Ind.; Iowa; Kan.; Ky.; Ale.; Alass.; Alo.; N. I.; N. Y.; N C.; Ohio; Pa.; Tenn.; Wis.; IT. S.; Eng. and Canada. Smith v. Smalley, 19 App. Div. 519, 46 N. Y. Snpp. 279; Sanford v. Duluth & D. Elevator Co. 2 N. D. 6, 48 N. W. 434; Shinn, Replevin, § 295, and cases cited in note 2; 38 Cyc. 2068, citing cases from Ala.; Cal.; Ind.; Ind. Terr.; Iowa; Alass.; Alich.; Alo.; Mont.; Neb.; N. Y.; N. C.; N. D.; Or.; S. D.; Wis.; IT. S.; Kan.; R. I.; Citizens Nat. Bank v. Osborne-McMillan Elevator Co. 21 N. D. 335, 131 N. W. 266.</p> <p>The bank is estopped to claim a superior title to Tetrault’s half of the grain, over plaintiffs mortgage, because of the representations of Edwards to Hermann the preceding winter, to the effect that Hermann’s mortgage thereon was a first mortgage — and there followed an actual division of the grain. The tenant is the absolute owner of the crop unless title is reserved in the owner of the land. 24 Cyc. 1067.</p> <p>If the landowner retains title, he can pass it to the tenant, even though the tenant has failed to perform the contract. Lallier v. Pacific Elevator Co. 25 S. D. 572, 127 N. W. 558.</p> <p>If the acts in themselves constitute a conversion, no demand is necessary. Taugher v. Northern P. R. Co. 21 N. D. Ill, 129 N. W. 750; Alore v. Burger, 15 N. D. 345, 107 N. W. 200.</p> <p>Especially is no demand necessary where it would be unavailing. Hahn v. Sleepy Eye Mill. Co. 21 S. D. 324, 112 N. W. 843; Consolidated Land & Irrig. Co. v. Llawley, 7 S. D. 229, 63 N. W. 904; Willard v. Monarch Elevator Co. 10 N. D. 400, 87 N. W. 996.</p>

<p>Transfer — fictitious — title — encumbrance — payment — judgment — amount — taxes — decree of foreclosure.</p> <p>Plaintiff brings action to foreclose a second real estate mortgage for over $3,000. A, mortgagor and owner, defends, contending that by a deed executed to the Kratt Realty Company, a holding corporation for the plaintiff bank, plaintiff became owner of land covered by plaintiff’s and other mortgages and liens aggregating over $7,500, under an agreement whereby plaintiff assumed and agreed to pay all indebtedness secured by encumbrances against said land.</p> <p>Held: Said transfer was a fictitious one procured to be made by A, and that neither plaintiff nor the Kratt Realty Company took title, nor agreed to pay any encumbrance on the land; and plaintiff is entitled to a judgment for an amount aggregating $4,747.44 on March 1, 1914, with accruing interest from that date, and any payments made by plaintiff on the first mortgage lien, or any taxes paid by plaintiff to protect the mortgage foreclosed, together with costs of trial and appeal and a decree in foreclosure directed to be entered accordingly.</p>

From a judgment of the District Court of Nelson County, Templeton, J., plaintiff appeals. Voluntary acceptance of the benefits of a transaction is equivalent to a consent to all the obligations arising from it, so far as the facts are known or ought to have been known to the person accepting. Rev. Codes 1905, § 5310. The consideration at the time the contract was made, was reasonable and fair. This is the test as to adequacy of consideration.

The plaintiff; was guilty of such contributory negligence as will preclude a recovery by him, and the court erred in denying defendant’s motion for a dii*ected verdict. West v. Northern P. E. Co. 13 N. D. 221, 100 N. W. 254; Sherlock y. Minneapolis, St. P. & S. Ste.'M. E. Co. 24 N. D. 40, 138 N. W. 976; Pendroy y. Great Northern E. Co. 17 N. D. 445, 117 N. W. 531; Hope y. Great Northern E. Co. 19 N. D. 438, 122 N. W. 997.

By virtue of the deed from Wilson, Mountrail County acquired title to and possession and control of the property therein described. The estate conveyed was not one on condition. 2 Washb. Real Prop. p. 3, § 2; Garfield Twp. v. Herman, 66 Kan. 256, 71 Pac. 517; Curtis v. Board of Education, 43 Kan. 138, 23 Pac. 98. A deed absolute, but specifying the purpose for which the property conveyed shall be used, does not create an estate upon condition subsequent.

Action for conversion. Judgment for plaintiffs, Defendant appeals. Statement by Bruce, J. This is an action for conversion. On May 3, 1907, the plaintiffs and respondents purchased from Garnaas Brothers, a corporation, four certain horses, and in payment therefor gave to such corporation their promissory notes secured by chattel mortgage on the horses purchased and other property.

Action for damages for loss of freight by fire. Judgment for defendant. Plaintiff appeals. Statement by Bruce, J. This is an action to recover the value of certain merchandise -which was destroyed by fire in defendant’s warehouse at Mandan on March 8, 1910. Various shipments of merchandise were consigned to defendant by various wholesale houses for delivery to the plaintiff at Mandan, North Dakota.

H. Winchester, J. _ . Tbe offer in evidence by tbe plaintiff, bolder of a negotiable promissory note, duly indorsed, where tbe indorsement is not in issue, made a prima facie case, tbe presumption being that plaintiff acquired same in due course, before maturity. Rev. Codes 1905, § 6361; Kerr v. Anderson, 16 N. D. 36, 111 N. W. 614; Sbepard v. Hanson, 9 N. D. 249, 83 N. W. 20. It is immaterial whether tbe same was purchased outright or held as collateral. Second Nat.

This is an appeal from the judgment of the District Court of Renville County, Honorable K. E. Leighton J. As to the first cause of action, there being no objection to the sufficiency of the complaint on any grounds, the complaint states facts constituting a cause of action, and should be liberally construed in favor of the plaintiff, even though objection to the introduction of evidence had been made.

<p>An appeal from taxation of costs, in which $1 per printed page for abstracts, and briefs was taxed as the disbursements of the prevailing party paid therefor.</p> <p>Appeal — taxation of costs — abstract — brief — disbursements — amount, actually paid.</p> <p>1. The allowance is reduced to 50 cents per page as the amount actually paid, for printing.</p> <p>Court rules — printing of briefs and abstracts — size of page — exclusive of marginal or page numbering.</p> <p>2. The court rules covering printing require that the printed page shall be 7 inches long by 3J inches wide of printed matter, exclusive of marginal or page numbering.</p> <p>Briefs and abstracts — former appeal — deficiency in size — no objection — costs taxed and allowed — exceptions to printed matter must be urged on appeal — waived otherwise — allowance — amount actually paid.</p> <p>3. Where printed briefs and abstracts were used on the former appeal, and the same were not there excepted to as not having the proper amount per printed page required by the rules, the printed page being undersized; and the court having adjudged on such appeal that the prevailing party printing such briefs should recover costs to be taxed as provided by law, — the trial court properly refused to make allowance for any deficiency in size of the printed page. Where an objection may be made on such grounds on the appeal in which the printed abstracts and briefs are used, any exceptions to any such deficiency in the briefs and abstracts must be urged on that appeal, otherwise the same will be deemed waived and the amount actually paid for the printing should be taxed, regardless of a deficiency in size of the printed pages of briefs and abstracts.</p>

L. Leigh-ton, Special Judge. Action for tbe dissolution of a partnership and for an accounting. Judgment for plaintiff. Defendants appeal.

From the judgment entered on the order of dismissal of the District Court of Benson County, Gowcm, J., plaintiff appeals. • Defendant’s special appearance ripened into a general appearance when he made and filed his answer to the complaint. Bev. Codes 1905, § 8358; Benoit v. Bevoir, 8 N. D. 226, 77 N. W. 605; Jennings v. West, 40 Kan. 372, 19 Pac. 864; St. Louis & S. F. B. Co. v. Sullivan, 7 Kan.

Judgment of dismissal of action granted on motion by the District Court of Cass County, Polloclc, J. Plaintiff bas an absolute legal right to contest the allegations of defendant’s answer, either as upon direct denial, or avoidance, as the case may be. N. D. Bev.

<p>Appeal from the County Court of Stutsman County, Uemmi, J.</p>

Election contest over tbe office of mayor of Larimore; appeal from Grand Eorks County, Honorable O. M. Gooley, J. Section 602, Revised Codes, provides for elections. Held: — the contest. Treat v. Morris, 25 S. D. 615, 127 N. W. 554.

Judgment for defendants. Plaintiff appeals. Held: therein asking that stock be allowed to run at large from the date of the petition until next general election; that such petition was filed with the county auditor on or about the 1st day of July, 1913; and the district covered by such petition is as follows: Township 147 north of range 96 west; township 148 north of range 96 west;…

<p>Appeal from the District Court of Pierce County, Honorable J. F. Cowan, J.</p>

C. Crawford, J. From an order vacating a default judgment and permitting defendant to answer upon the merits, plaintiff appeals. The discretion referred to in such cases is not a mental discretion, but a legal one, to be exercised within the law. It is the duty of courts to follow the intent and spirit of the law, and not simply to give effect to the will of the judge. Tripp v. Cook, 26 Wend. 152.

A state's attorney of a county, having been its legal adviser, and especially in the matter of the county acquiring title to lands, and later in quieting the title, is estopped to acquire or assert an interest in such lands adverse to the county or to its grantees, and any interest he may have acquired is for their benefit. 4 Cyc. 958; 3 Am. & Eng. Enc. Law, 344, 2d ed.; Weeks, Attorneys at Law, 2d ed. § 121; Yerkes v. Crum, 2 N. D. 72, -49 N. W. 422.

A. Coffey, J. From a final order adjudging void certain provisions of a will devising real property, upon the ground that the same operate to unlawfully suspend the power of alienation, the petitioners for the probate of such will appeal. The will here in question does not operate to suspend the power of alienation. Hagen v. Sacrison, 19 N. D. 160, 26 L.R.A.(N.S.) 724, 123 N. W. 518; Robert v. Coming, 89 N. Y. 226; Dillenbeck v. Dillenbeck, 134 App.

Under the act in question the city stands in no representative capacity toward the owners or residents of the annexed tract of land; the rights of such owners and residents are not consulted, and they have no voice in the proceedings to annex their territory to the city. The act is invalid. People ex rel. Shumway v. Bennett, 29 Mich. 451, 18 Am. Rep. 107; Morton v. Holes, 17 N. D. 158, 115 N. W. 256; People ex rel. Atty. Gen. v. Holihan, 29 Mich. 116; State ex rel.

The husband is the head of the family. ITe may choose any reasonable place or mode of living, and the wife must conform thereto. Rev. ■Codes 1905, § 4076. A conveyance of the homestead must be executed by both husband and wife. Rev. Codes 1905, § 5052. A mortgage on the homestead, executed by the husband alone, is not voidable, but wholly void.

<p>Appeal from the District Court of Emmons County, Winchester, J.</p>

Action to set aside a decree of divorce. Judgment for plaintiff. Defendant appeals. The marriage relation was severed by death and by the judgment entered, and the court will not set aside the judgment of divorce, unless there are property rights involved. Hite v. Mercantile Trust Co. 156 Cal. 765, 106 Pac. 102; Day v. Nottingham, 160 Ind. 408, 66 N. E. 998; 1 Current Law, 950; 15 Current Law, 1432.

<p>Judgment — stipulation — motion to Ibe relieved from — appeal — errors — moot questions — dismissal.</p>

<p>Appeal from the District Court of Emmons County, Winchester, J.</p>

<p>Appeal from the District Court of Emmons County, Winchester, J.</p>

<p>Appeal from the District Court of Emmons County, Winchester, J.</p>

<p>Appeal from the District Court of Emmons County, Winchester, J.</p>

A. Pollock, J. From a judgment in defendants’ favor, plaintiff appeals. The petition must show that the territory proposed to be annexed is outside the limits of the special district, but adjacent thereto. Laws, 1911, § 133, chap. 266; Redfield School Dist. v. Redfield Independent School Dist. 14 S. D. 229, 85 N. W. 180.

Fisk, J. The contract proved must be the contract pleaded. Such a contract must be fully set forth in the complaint, ánd the proof must conform thereto. Kane v. Sherman, 21 N. D. 249, 130 N. W. 222; 19 Cyc. 275; Steere v. Gingery, 21 S. D. 183, 110 N. W. 774. The mere fact that the broker brought the parties together — introduced them — is not enough to entitle him to a commission. He must be the procuring cause of the sale. Keener v. Harrod, 2 Md. 63, 56 Am.

Action for accounting. The plaintiff is guilty of laches in not bringing this case up for trial, and there is no justification or excuse for such failure. Naddo v. Bardon, 2 C. C. A. 335, 4 U. S. App. 642, 51 Eed. 493; Hayward v. Eliot Nat. Bank, 96 U. S. 611, 618, 24 L. ed. 855, 858; Washington v. Opic, 145 U. S. 214, 36 L. ed. 680; Patterson v. Hewitt, 11 N. M. 1, 55 L.E.A. 658, 66 Pac. 552, 195 U. S. 309, 49 L. ed. 214, 25 Sup. Ct. Eep. 35.

Motion to dismiss appeal upon the alleged ground that such appeal was taken after the expiration of one year from the date of service of the notice of entry of judgment.

<p>Contract — power to cancel — court of equity — exercised only in clear case — fraud.</p> <p>1. The power to cancel a contract will not he exercised by a court of equity, except in a clear ease, and never for an alleged fraud, unless the fraud be made clearly to appear.</p> <p>Evidence — fraud — undue influence — failure to show.</p> <p>2. Evidence examined and held, neither to show fraud nor the use of undue influence.</p> <p>Note. — On the question of the jurisdiction of equity to cancel instrument on the ground of fraud, see note in 5 L.R.A.(N.S.) 1036.</p>

Fisk, Judge. Each of th'e instalment payments covered by a mortgage shall be deemed as a separate and independent mortgage, and the mortgage for each instalment may be foreclosed in the same way and with like effect as though separate mortgages. N. D. Codes 1905, § 7458; Mc-Curdy v. Clark, 27 Mich. 445; Kimmell v. Willard, 1 Dougl. (Mich.) 217. No one instalment in such a mortgage has any preference over the other. Cooper v. Ulmann, Walk.

A. Coffey, J. Action in foreclosure. From a judgment in plaintiff’s favor, defendant appeals. This action should be dismissed because plaintiff had waived his right of election to declare the whole sum secured by the mortgage due, and to foreclose for same. Yan Vlissingen v. Lenz, 171 111. 162, 49 N. E. 423. The right to declare the whole sum due on account of partial default must be exercised with promptness. Such right may be lost by laches. 27 Cyc. 1533, note'62.

Action to remove from office under §.9646, Bev. Codes 1905. Judgment for plaintiff. Defendant appeals. Statement by Bruce, J. This is an accusation under § 9646 of tbe Bevised Codes of 1905, in -which the appellant and defendant, C. O. Borstad, is charged with collecting illegal fees for services rendered in his office as a member of the hoard of county commissioners of Williams county, North Dakota, and his removal from such office is sought for these reasons.

Action to restrain the collection of a special assessment sought to be levied under chapter 62 of the Laws of 1905. Judgment for defendants sustaining a demurrer to the complaint. Plaintiffs appeal. Plaintiff’s property is not within the sewer district as created by the ordinance, and hence it is not subject to the tax. Neher v. McCook County, 11 S. D. 422, 78 N. W. 998; Dumas v. Doulin, 1 MeGloin (La.) 275; Hibberd v. Slack, 84 Fed. 577; Ee Goetz, 71 App.

Suit to restrain the collection of a special assessment. Judgment for defendant. Statement by Bruce, J. This suit was brought by the appellant lumber company to restrain the collection of a special assessment on block 36 of the town of Grand Forks, and which was levied to defray the cost of the construction o£ a trunk sewer.

Motion, for leave to prepare and serve specification of error inadvertently omitted. Counter motion to dismiss appeal.

G. Burr, J. From a judgment in plaintiff’s favor and from an order, denying a new trial, defendant appeals. In an action for damages for criminal conversation, the marriage between plaintiff and bis wife must be proved by direct evidence, and not by mere circumstances, sucb as cohabitation or reputation. Dann v. Kingdom, 1 Thomp. & C. 492; Catberwood v. Caslon, 13 Mees. & W. 261, Car. & M. 431, 13 L. J. Exch.

L. Nuchols, Special Judge. From an order refusing to proceed with the trial, defendant appeals. The transfer of a county to a new judicial district does not oust the judge of the old district from jurisdiction to settle a statement of the case or grant a new trial in a case originally tried before him. Bruegger v. Cartier, 20 N. D. 72, 126 N. W. 491; Et vide Darelius v. Davis, 74 Minn. 345, 77 N. W. 214; McCord v. Knowlton, 76 Minn. 391, 79 N. W. 397; Eev. Codes 1905, § 6766.

Action to recover money deposited in a bank by a trustee. Judg' ment for defendant. Plaintiff appeals. Statement by Bruce, J. Plaintiff deposited in tbe defendant bank, as part of his general deposit, money belonging to a client, his mother, which was given him in order that he might pay certain taxes and other debts owing by the cestui que trust.

<p>Building contractor — action on bond — judgment — demurrer to complaint — bond — reformation of — action for breach — damages — vacating of judgment — amendment.</p> <p>Action on a building bond for breach by the contractor of a building contract. Erom an order vacating a judgment entered upon the sustaining of a demurrer to plaintiffs’ complaint, and granting leave to serve, and file an amended complaint, defendant Ewald, surety on the bond, appeals. Held:</p> <p>That as the bond and building contract set forth in the complaint, together with the breach of contract therein pleaded, may constitute a basis for an action to reform the bond, and, after reformation, permit a recovery of damages for its breach, the vacating of the judgment, with leave to amend complaint, was proper. i</p>

<p>Smith brings foreclosure of a purcbase-priee real-estate mortgage given by Bradley mortgagor as a part performance of a decree of specific performance of a contract for sale of land by Smith, including buildings, fencing, and an assignment of lease. Smith then refused to assign lease. Pending specific performance, Smith had injured and removed buildings from the land sold, and for which Bradley offset damages against this foreclosure debt. Held:</p> <p>Acceptance of deed — contract — full performance — partial breach — damages.</p> <p>1. Bradley’s acceptance of Smith’s deed was not taken in full performance of the contract, still executory as but partially performed, and for partial breach of which actual damages sustained may be recouped.</p> <p>School lands — lease — default — damages.</p> <p>2. Defendant is denied recovery for nonassignment of school leases, as for three years after Smith’s default the school land in question was not leased to anyone, and which fact inquiry would have disclosed. Bradley could have received by a lease from the state all he would have obtained by an assignment of a similar lease from Smith, and therefore has suffered no damages, except as a result of his own failure to exercise ordinary diligence.</p> <p>Counterclaim — reduction — foreclosure — judgment.</p> <p>3. With a reduction of $960 and interest on the counterclaim allowed, judgment of foreclosure is awarded.</p> <p>Costs— disbursements — appeal.</p> <p>4. Appellant Smith will recover costs and disbursements of trial in district court and on this appeal.</p>

A. O. Burr, Judge. The insufficiency of the evidence to establish the alleged agreement might be remedied on another trial, and hence, though it would be a ground for a new trial, it would not justify a judgment-wow obstante veredicto. Meehan v. Great Northern E. Co. 13 N. D. 441, 101 N. W. 183. In any event, the agreement alleged was unlawful, and unenforceable, because its execution involved the commission of a crime. Eev. Codes 1905, §§ 4657, 4658.

G. Burr, J. From a judgment in plaintiff’s favor, defendant M. C. Krupp appeals. The term “conveyance” embraces every instrument in writing by, which any estate or interest in real property is created, alienated, mortgaged, or encumbered, or affected, except wills and powers of attorney. Rev. Codes 1905, §§ 5038, 5039. The interest of a vendee under an unperformed executory contract does not constitute real property of 'such vendee.