Volume 39 — North Dakota Reports

L. Nuessle, Judge. Defendants appeal. The appointment of an agent need not be by express language, but may be and often is implied from the relation of thé parties and from their conduct. 1 Am. & Eng. Enc. Law, 957, note 5, 959, 960, 1144 and cases cited in note 1. Silence, when there is a duty to speak, is deemed equivalent to concealment when the person had a full knowledge of the facts and of his rights. 10 R. C. L. 693; Pom. Eq.

<p>County — division of — general election — vote of — civil township — congressional township — identity presumed.</p> <p>When a county is divided by a vote at a general election, and the dividing line runs through a civil township which is composed of a congressional township and nineteen sections of land in addition thereto, so that such congressional township is located in the county which has been newly created and the additional nineteen sections in the old county, such additional territory still maintains its identity as a township in the county to which it formerly belonged and in which it now remains, and such original township is not dissolved save to the extent of the territory which is taken from it, and which becomes unorganized territory in the new county. •</p>

Nuessléj Judge. Where it is claimed tbat the contract is partly in writing it is proper to show prior oral statements and representations not in conflict withtbe written portions. Hanley v. Chicago, M. & St. P. R. Co. 154 Iowa,, 60, 134 N. W. 411. Parol evidence is admissible to show prior or contemporaneous collateral agreements between the parties, though a written contract was entered into. Clare County Sav.

<p>Foreign corporation — threshing machine company —head office — of given territory — general manager or agent of — authority to do everything necessary, proper, and useful — in the ordinary course of its business —< purpose of his agency.</p> <p>1. Where one, a foreign corporation, a threshing machine company, with its principal place of business at Hopkins, Minnesota, does business in other states, and has certain of other states arranged into particular territory in which there is maintained a head office in which there is a general manager, such as a territory comprising a part of North Dakota, Minnesota, and Montana, with head office at Grand Forks, North Dakota; and it appears that the authority and power of the manager in the head office in such territory extend to and include the making of contracts with the local agents in his-territory for the sale of defendant’s machinery, subject to the approval of the company; and, further, the authority and power to sell from the head office the machinery of the company, the defendant in this case, — such general manager and agent, having such authority to sell such machinery, under § 6340, Comp. Laws 1913, has authority to do everything necessary, proper, and useful in the ordinary course of business for effecting the purpose of his agency.</p> <p>Note. — For authorities discussing the question as to whether one having exclusive sales agency in a specified territory can recover commissions on a sale made by another outside that territory simply because the vendee is a resident of the territory, see note in á0 IAR.A. (N.S.) 971, on right of one having exclusive sales agency within given district, to commissions on sales made by another outside of the district to a resident thereof.</p> <p>Directed verdict — for defendant — questions of fact pending — for jury — error.</p> <p>2. Under the circumstances of this ease, it was error to grant the request- and motion of the respondent when both sides had rested, for a peremptory instruction to the jury, and for a directed verdict on behalf of the defendant, there being questions of fact involved in the case which should have been, submitted to the jury and their verdict had thereon.</p>

<p>Garnishee process — one served with — affidavit or answer — property in his hands — facts fairly and fully set forth — no issue taken — default in — facts stated arc conclusive.</p> <p>1. Where one is served with garnishment process, and within the time required by law makes and serves on the person who brought such garnishment proceedings his affidavit or answer which fairly and fully sets forth the facts and circumstances relative to the property in his hands or under his control belonging to the defendant, and no issue is taken with such answer or affidavit of the garnishee within thirty days, the time specified by law in which persons maintaining such garnishment proceedings shall take issue with such garnishee’s affidavit or answer, the facts and matters stated in such affidavit or garnishee answer are conclusive and must be taken as true.</p> <p>Garnishee — disclosure by — full and fair statement — denial of liability — no issue taken — conclusive.</p> <p>2. In the case at bar there were two garnishees, the first being John W. Maher; the second being the Imperial Elevator Company. John W. Maher disclosed that he was in no manner indebted to the defendant. He further disclosed that he had security upon the crops grown upon certain lands sold by him to Fred Lemke, the defendant. Nowhere was there any admission of liability in such affidavit or answer, and there was a denial of such liability therein. No issue was taken on such affidavit or answer of John W. Maher within thirty days, and hence his statement of nonliability to the defendant must be taken as conclusive.</p> <p>Garnishment proceeding’s — affidavit or answer — setting up other claims — . prior in right to plaintiff’s claim, if true — no issue joined — statements — conclusive — no garnishahle claim — owned by defendant.</p> <p>3. The Imperial Elevator Company disclosed in their affidavit or answer that the property in question, the wheat and barley which was delivered at their elevator, was supposed to he owned by John W. Maher and one Havener. That after such grain was delivered to the elevator, notice was served upon them by many persons, naming them, who claimed an interest or lien upon said grain, and claimed they owned the same iii whole or in part. It appears from the record that there were sufficient liens filed against defendant’s alleged half of such crop to more than equal the value thereof, which claim3 were filed prior to the time of the service of the garnishment process. Most or all of such liens were disclosed by the affidavit of the garnishee. 'No issue was taken on such affidavit, and the truth of the matters stated therein became conclusive. The plaintiff not having taken issue with such allegations, nor any steps to bring in any of the claimants by serving the order of the court upon them, and thus proceeding in the way prescribed by law to compel such claimants to prove and establish the validity of their claims, it must be concluded as a matter of law that all of the allegations and statements in the garnishee affidavit or answer are true, and that the claimants referred to in such affidavit are the owners, in whole or in part, of half of such grain which is alleged as belonging to the defendant; and no issue having been taken so as to compel the claimants to establish the validity of their liens admitted to be on file at the time of the service of the garnishment summons and process, such liens must be held to be valid, and the. defendant held to have no garnishable -interest in such grain at the time of the service of the garnishment process.</p> <p>Sale of land — under crop-payment contract — crops raised — ownership of — garnishable interest — in defendant — none appearing.</p> <p>4. It appearing by the testimony that John W. Maher sold to Fred Lemke certain land upon crop payment, said Lemke to pay for such land by delivering one half of the crop raised thereon during each year of the life of the contract; and it appearing by the testimony that the defendant leased said land to one Havener for the year 1909, being the year in question, when the crops in dispute were raised upon said-land, — it was held so far as the record disclosed, by reason of the leasing of such land as aforesaid, that at the time of the service of the garnishment process Fred Lemke had no garnishable interest in such crops.</p> <p>Garnishment process — liability of g-arnishee — indebtedness to defendant — facts and circumstances — service of process — changed conditions thereafter — cannot affect rights.</p> <p>5. Where garnishment process is served upon the garnishee the liability of the garnishee is determined by the facts and circumstances with reference to his indebtedness to the defendant, if any, at the time of the service of the garnishee summons. A change in events after the service of the garnishee summons upon the garnishee cannot increase his liability.</p>

order of the District Court of Billings County, W. C. Crawford, J. That district court has a right within one year to modify its judg ments by inserting therein provisions inadvertently, or through excusable neglect, omitted therefrom, is too elementary to require comment. Comp. Laws 1913, § 7483. Plaintiff’s remedy was by appeal from the order of the court if he claimed relief therefrom. Comp. Laws 1913, § 7841.

<p>District coart — term of — day of opening — adjourns to day certain — affidavit of prejudice — filed after opening of term — Before adjourned date — not timely filed — court — may disregard.</p> <p>1. Where, on the day of the opening of the term of district court, the court, convenes, continues pending matters, and adjourns to a day certain, an affidavit of prejudice, filed after the opening of the term but before the date to. which the adjournment was taken, is not filed within the time required by 7644, Comp. Laws 1913, and may be disregarded by the court.</p> <p>•Cropper’s contract — farming — complaint — allegations of — advances to plaintiff — plaintiff’s share of crops was security for — credit extended — crops raised — accounting.</p> <p>2. Where a complaint alleges that plaintiff had farmed the land for defendant for two years under cropper’s contract; that defendant had received practically all of the crops; that plaintiff had purchased on credit defendant’s share of some of the crops; that defendant had made advances to the plaintiff, for which plaintiff’s share of the crop was security; that defendant had extended credit to the plaintiff on a store account; and that defendant kept account of the amount and value of crops received, advances made, etc., — the complaint states a cause of action for accounting.</p> <p>•Compromise negotiations — admissions made during — independent facts — with respect to — subsequent litigation — admissions so made — may be received in evidence.</p> <p>3. Where, during compromise negotiations, a party makes an admission with respect to independent facts, such admission may be received in evidence in subsequent litigation.</p> <p>Evidence — sufficiency of.</p> <p>4. Evidence examined and held to support the judgment.</p>

M. Hanley, J. A provision in a fire insurance policy to the effect that no other or' additional insurance shall be taken out on the property insured by the insured, without the written permission of the first insurer, and that if such other insurance is placed upon the property without such written permission, the policy shall be void, is customary and reasonable and will be enforced. 2 Clement, Fire Ins. 83, and cases cited; Johnson v. Dakota F. & M. Ins.

A. Pollock, Judge. Plaintiff appeals. Under a farming contract providing that the owner shall have and retain title and possession of all the crops raised thereunder and shall have the right to payment out of the share that might ultimately belong to the tenant or worker of the farm for all debts due him from such tenant, and for all advances made to such tenant, the owner of the land is the absolute owner and entitled to the possession of all of the crops grown, until the…

C. •Crawford, J. A fact or question which was actually and directly in issue in a former suit and was there judicially passed upon, is conclusively settled 'by the judgment therein so far as concerns the parties to that action .and persons in privity with them. 23 Cyc. 215. To constitute a judgment an estoppel, there must be an identity of parties and subject-matter. 23 Cyc. 1237, 1240; A. T. Albro Co. v. Fountain, 15 App.

<p>Highway — establishment oX — county commissioners — statute — compliance with — damages — assessment — payment — property owner — mere acquiescence — waiver ol rights — is not petition for highway — signed by such owner — improvements made — knowledge of owner —aid given by in construction — legality of highway — cannot question — limited to damages.</p> <p>Where county commissioners seek to establish a highway under the provisions of § 1927 of the Compiled Laws of 1913, they should comply with the provisions of the statute in regard to the assessment and payment of damages; and where such has not been done mere acquiescence by a property owner in the establishment of the road will not in itself amount to a waiver of the right to such determination of damages. Where, however, the property owner himself signed the petition for the highway, and stood by while improvements were made on an approach thereto, and in order that the same might be used, and for a number of years acquiesced in the use of the road, and himself aided in the construction of a small improvement thereon, he will not be allowed to question the right to the highway or to obstruct the use thereof, but will be limited to his right to damages alone. This right, however, may be asserted in an action which is brought against him for an injunction to restrain the obstruction of the highway, and even though the injunction is allowed.</p>

Mandamus to compel a board of arbitrators appointed under the provision of § 1327 of the Compiled Laws of 1913, to reconvene and to cause a levy to be made. Appeal from the District Court of Cass County, Honorable, A. T. Cole, Judge. Judgment for plaintiff. Defendants appeal. Special meetings of school hoards are called on notice of forty-eight hours before meeting, left at residence or a personal service. Comp. Laws, 1913, § 1247.

Action to recover damages for the flooding of a building. Appeal from the District Court of Stark County, W. O. Crawford, J. Judgment for plaintiffs. Defendant appeals. There is no negligence on the part of defendant proximately causing the loss claimed, shown by the testimony in this case. The plaintiff insists that, without reference to the question of negligence, the defendant is answerable in damages. Such is not the law.

<p>Conversion — personal property — wrongfully taken — value of —action to recover.</p> <p>This is an action to recover the value of personal property wrongfully taken from the possession of the plaintiff and sold on an execution against a third party. The facts stated clearly show the taking and conversion of the property, and that it was wrongful, and that plaintiff is clearly entitled to recover the value of his property, with interest and costs.</p>

<p>Conversion — personal property — wrongfully taken — value of — action to recover.</p> <p>This is an action to recover the value of personal property wrongfully taken from the possession of Die plaintiff and sold on an execution against a third party. The facts stated clearly show the taking and conversion of the property, and that it was wrongful, and that plaintiff is clearly entitled to recover the value of his property, with interest and costs.</p>

<p>Complaint — cause of action — money had and received — testimony — conflict in — questions for jury — verdict — final — trial otherwise fair.</p> <p>The complaint states a cause of action for money had and received and three-separate causes of action for goods bargained, sold, and delivered. On each point and issue there was a sharp and decided conflict of testimony. The jury found generally and specifically in favor of the plaintiff. There was a fair trial and no error, and the judgment is affirmed.</p>

Action to set aside a decree of tbe County Court of Stark County distributing the estate of a deceased person. Appeal from the District Court of Stark County, W. C. Crawford, «L Judgment for defendants. Plaintiff appeals. The marriage settlement is void under our Statute of Frauds because it was not signed until some length of time after marriage. An oral antenuptial contract other than to marry is void and cannot be validated after marriage. 21 Cyc. 1293; Comp.

From a judgment of tbe District Court of Cass County, Pollock, J.r defendant appeals. A party who disclaims any title to certain personal property and suggests and in reality invites a third party to bring attachment against said property as the property of the judgment debtor of said third party, and such attachment proceedings are so instituted, is estopped to claim title to and ownership of such property thereafter.

From an order overruling a demurrer to the complaint, defendants-appeal. To say of an ex-officer that he did not enforce the law while in office is not libelous. Pandow v. Eichsted, 90 Wis. 298, 63 N. W. 284. The defendants here are only responsible for the meaning which the words, reasonably interpreted and applied, would convey to the minds-of the readers or hearers. Herringer v. Ingberg, 91 Minn. 71, 97 N.. W. 460.

A. Coffey, Judge. Plaintiff appeals. The title to personal property sold or exchanged passes to the buyer whenever the parties agree upon a present transfer of the thing itself, identified, whether it is separated from other things or not. Comp. Laws 1913, § 5535; O’Keefe v. Leistikow, 11 N. D. 355, 101 N. W. 515, 9 Ann. Gas. 25.

G. Burr, Judge. Defendants appeal. “The statutory undertaking on appeal will operate as a stay of execution; and where another undertaking is given for the purpose of staying the execution, it is without consideration and cannot be enforced either as a statutory or a common-law obligation against the sureties, though the judgment was for the foreclosure of a chattel mortgage on perishable property, and the obligee relied upon such obligation, and refrained from disposing of…

Allen, Judge. . Application for the allowance of the account of an executor and for final distribution. Cross petition for reformation of the will. Judgment for cross petitioner. Executor appeals. The controlling sections of our Code come to us from California and with them an unbroken line of decisions placing construction upon them. “No more in wills than in any other writings is parol evidence admissible to vary the terms of the instrument.” Comp.

<p>Broker — listing' of property with — for sale — specified time and terras — definite commissions — owner of property — may sell through other agents — during such specified time — is liable to former agent — for commissions — purchaser procured by — during said time.</p> <p>1. Where the owner of property lists, the same for sale with a broker for a definite period of time upon specified terms, and definite commission for making such sale by such broker is specified, the owner of the property may during the period of tune specified in the agency contract and sell the property through other agents, but cannot do so and relieve himself from liability to pay the agent who had the property listed for a certain time his commission as specified, where such agent, with no notice of any sale by another agent, and within the time, produces a person ready, able, and willing to buy the property upon the terms stated in the agency contract.</p> <p>Instructions of court — jury — harmless error.</p> <p>2. The instructions of the court examined, and held that if such instructions contain any error, such error is harmless.</p> <p>Note. — On the question of liability of owner upon revoking authority of real estate broker employed for a definite period, see notes in 38 L.R.A.(N.S.) 366, and L.R.A.191SD, 731; On broker’s right to make sale of property exclusive of owner’s right, see notes in 24 L.R.A.(N.S.) 279 and 40 L.R.A.(N.S.) 1142.</p>

Action in conversion against a public warehouseman upon storage of grain, and also against the surety upon the warehouseman’s bond. Appeal from a judgment of dismissal as to the surety by the County Court of Renville County, Honorable Percy 8. Grews, Judge. The bond of the elevator company which took the appellant’s grain for storage provides that said company will, on demand, deliver to the ticket holder the grain, or a like quantity and kind of grain, or pay for same.

<p>Statutes — construction — tax deed — validity of — lands described — sold in separate tracts — must have been —sale en masse — not valid.</p> <p>Sections 2122, 2123, and 2124, Compiled Laws of 1913, construed, and, it is held, that in order that a tax deed may be valid, the lands described therein must have been assessed and sold in separate tracts, when they were as a matter of fact in two tracts, noncontiguous and with 80 rods intervening.</p>

<p>Order to show cause why appeal should not be dismissed.</p>

G. Burr, Judge. Plaintiff appeals. The charge of the court to the jury, standing unchallenged, becomes the law of the case, so far as the parties are concerned. Kramer v. N. W. Elev. Co. 106 N. W. 86; 8 Enc. PI. & Pr. 253. Misconduct of an attorney must be objected to at the time it occurs and the attention of the trial court called to it, and the objections must appear of record or the supreme court cannot review them.

<p>Moot questions — court will not determine — doing useless thing — will not require.</p> <p>1. This court will not determine moot questions, nor require the doing of a useless thing.</p> <p>Mandamus — writ of — will not issue — to compel the doing ol a useless thing.</p> <p>2. The writ of mandamus will not issue to compel the doing of an ineffectual act, or useless thing.</p>

C. Crawford, Judge. Where the errors of 'which complaint is made appear upon the face of the record and judgment roll, no statement of the case is required to be settled, nor is any statement of the case necessary. Comp. Laws 1913, § 7842; Brown v. Slcotland, 12 N. D. 445, 97 N. W. 543; Brandenberg v. Phillips, 18 N. D. 200, 119 N. W. 542; Savol'd v. Baldwin, 27 N. D. 342, 146 N. W. 544.

<p>Accounting — use ami occupation — review oí evidence.</p> <p>Eor reasons stated in the opinion, it is held that defendant is not entitled to certain items allowed him upon an accounting.</p>

Allen, Judge. Neither the state courts nor the civil courts will determine a question of doctrinal difference, or of church polity, for the sake of permitting or furnishing a basis upon which to predicate a civil action. All questions of doctrine, teachings, beliefs, and theory must first be settled within the church organization.

<p>Pleading — complaint — basis oí action —cause of — facts only stated — demurrer — office of — trial of case — objections first raised on — not looked upon with favor — legal rights and remedies.</p> <p>The basis of every action is a complaint, which should state in a plain and concise manner the facts constituting a cause of action. When a complaint wholly fails to state a cause of action, the proper practice is to demur to it, so that before trial the court may pass upon the sufficiency of the complaint and settle the issues to be tried. Objections to a pleading merit no favor when-first made on the trial of the case.</p> <p>The law does not favor a trip-up practice or the denial of legal rights and' remedies because of defects in a complaint which may be amended.</p>

M. Hanley, J, An appearance in a pending cause for the purpose of participating in the taking of depositions to be used upon the trial thereof is to all intents and purposes a general appearance, and entitles the party so appearing to the statutory notice of any and all further proceedings in the cause, and an order issued without such, notice, but wholly upon an ex parte application, is void. Comp. Laws 1913, § 7600, ¶ 2; Kelsey v. Covert, 6 Abb. Pr. 336, 15 How.

<p>This case is governed by the decision rendered in Froelich v. Northern P. R. Co. ante, 307.</p>

Honorable W. C. Crawford, Judge. Defendants appeal. In such cases as this one it is absolutely necessary for plaintiff to-allege and to prove that execution had been issued and returned unsatisfied. Minkler v. U. S. Sheep Co. 4 N. D. 507; McGreenery v. Murphy, 39 L.R.A.(N.S.) 374.

E. Leighton, Judge. A witness cannot state what he understands or thinks about the subject-matter under consideration. These statements are mere conclusions. 1 Thomp. Trials, 389. Or for a witness to state what the defendant meant by the use of certain language. 1 Thomp. Trials, 738. Orto state his belief concerning the subject-matter. Smith v. Northern Pac. 3 N. D. 553. Or what a party intended. Witt Mfg.

T. Cole, J. It is the law that where a party sues on an express contract he cannot recover on an implied contract, nor on a quantum meruit. 9 Cyc. 749 et seq., Wernli v. Collins (Iowa) 54 N. W. 364; Morrow v. Board ■of Education (S. D.) 64 N. W. 1126; Ball v. Dolan (S. D.) 114 N. W. 998; 2 Enc. PI. & Pr. 990.

Crawford, Judge. In a law action the plaintiff would be entitled to treble damages against McCarty for the use of the land. Code, § 7175. McCarty cannot recover the consideration paid for the land nor for improvements made thereon nor for taxes paid. He is not an adverse-claimant holding under color of title in good faith, and therefore can have no relief. Wood v. Conrad (S. D.) 50 N. W. 95; Lindt v. Uhlein (Iowa) 89 N. W. 214.

<p>City commissioners — contract for paving — payment of price — mandamus to compel — duty of commissioners — specific performance of — mandamus will only lie for’ — pleading — demurrer.</p> <p>This is a suit for a mandamus to compel the city commissioners to pay on the contract price of a pavement a balance of 15 per cent which has been retained pursuant to the paving contract. However, under the plain words of the statute the writ of mandamus may be issued to the city commissioners only “to compel a specific performance of an act wliicli the law specifically enjoins as a duty resulting from an office, trust, or station.”</p> <p>Manifestly there is no claim that the city commissioners have neglected the performance of a duty which the law specifically enjoins on them. Hence, the order sustaining the demurrer is affirmed.</p>

Application by Theodore Olson for a writ of habeas corpus. The statute in question, being penal, must be strictly construed. Ohase v. Ourtis, 113 U. S. 452. This trading stamp system has been employed in various states for a long time, and its plan has been defined and passed upon by the courts. Com. v. Gilson, 125 Ky. 440.

W. Bullz, Judge. Defendants appeal. “In determining whether the contract was divisible or indivisible, tbe intention of the parties should be sought to be ascertained from an examination of the entire instrument.” The contract here is one and indivisible.

G. Burr, J. An attorney’s lien is strictly dependent upon continuity of possession.

Action to quiet title. Appeal from the District Court of Ransom County, Honorable •Charles A. Pollock, Special Judge. Judgment for defendants. Plaintiff appeals. Statement of facts by Bruce, Oh. J. This is an action to quiet title in tbe plaintiff, Peternelle C. Arntson, in certain real estate owned by her husband while living.

A. Cojfey, Judge. Defendant appeals. It is to be presumed that all persons over the age of majority are sane and capable of transacting business.

W. Buttz, Judge. Defendant appeals. An action for conversion will not lie for disposing of property with authority. Coulter v. Cummings (Neb.) 142- N. W. 109; Siegel-Campion Live Stock Com. Co. v. Holly (Colo.) 101 Pac. 68; Chase v. Blaisdell, 4 Minn. 90; Doyle v. Burns (Iowa) 99 N. W. Í95;- Carlson-v. Jordon (Neb.) 93 N. W. 1130; Tousley v. Board of Education. (Minn.) 40 N. W. 509; Griffin v. Bustle (Minn.) 40 N. W. 523.

T. Gole, Special Judge. Statement of facts by Bruce, Ch. J. The petitioner, William Shaw, prays for a writ of prohibition which shall restrain the governor of the state of North Dakota from further proceedings in the suspension and removal of him, the said petitioner, from the office of president of the city commissioners of the city of Minot.

E. Leighton, Judge. Defendants appeal. A verified statement for a lien for services must be just and true. The wilful and intentional overstatement in a claim for a mechanic’s lien, of the amount due, will vitiate the lien entirely. McCormack v. Philips, 4 Dak. 506 and cases cited; 29 L.It.A.(N.S.) 317. Where a lien claimant places on record a statement which he knows is not correct, his right to lien is lost.

C. Crawford, Judge. Where a long time elapses between the time of trial and the date of findings by the court, and where no transcript or record was made or used by the court, there is no serious presumption that the findings are correct, and such findings are not entitled to that consideration which is usually accorded. Beed v. Ehr (N. D.) Adv.

Action for personal injuries. Appeal from tbe District Court of Billings County, Honorable TP. C. Crawford, Judge. Judgment for plaintiff. Defendant appeals. At tbe time of tbe occurrence of tbe accident of wbicb complaint is bero made, tbe railway crossing, or traveled road in question, bad not been so used for twenty years, and not having continued for twenty years, tbe public bad acquired no prescriptive right to tbe same as a highway.

Plaintiff appeals. Our statutes distinguish between the terms “costs” and “disbursements.” The former does not include the latter. Comp. Laws 1913, §§ 7790, 7793, 7794. A verdict for a specified amount, with interest thereon from a certain date at a certain rate, is a good verdict and is sufficiently definite: and where the sum allowed, with interest so computed and added amounts to $50 or more, the party is entitled to recover costs.

<p>IVew trial — motion for — order denying — appeal — motion to dismiss — for want of prosecution — excusable delay —appeal perfected during pendency of motion — motion denied.</p> <p>Where an appeal has been taken from an order denying a motion for a new trial, and motion is made to dismiss such appeal for want of prosecution and delay in presenting a settling of the statement of the ease, and in sending up the Judgment roll and delay in serving the brief, and it appears that the appellant relies principally upon the newly discovered evidence supported by affidavit as ground for a new trial, and it appearing the complete record on appeal was perfected and filed during the pendency of the motion to dismiss, —.</p> <p>Held, under these circumstances, the motion to dismiss the appeal in this ease should be denied.</p>

<p>Contract — canse of action on — complaint — supplemented toy answer setting-up contract — terms of — account stated.</p> <p>1. The complaint in the action is examined and held' to state a cause of action on contract, being supplemented by the answer which sets up the contract in full out of which the suit arose, thus supplying any deficiency in the allegations in the complaint with reference to the terms of the contract. It. is also further held that the complaint states a cause of action on an account stated.</p> <p>Verdict — evidence — sustained toy.</p> <p>2. Evidence is examined and held to amply sustain the verdict of the jury.</p> <p>Court — x'ulings of — on trial.</p> <p>3. Rulings of the court examined and held to contain no reversible error.</p> <p>Court — instructions to jury.</p> <p>4. Instructions of the court examined and held to he without error.</p>

<p>Action for personal injuries.</p> <p>.Appeal from the District Court of Cass County, Honorable A. T. Cole, Judge.</p> <p>Judgment for plaintiff.. Defendant appeals.</p>

T. Cole, J. The statute applying to architects is analago-us to the law relating to boards of health and to regulations promulgated by such boards. Comp. Laws 1913, § 433; Pierce v. Doolittle (Iowa) 106 N. W. 751, 6 L.R.A.(N.S.) 143; Blue v. Beach, 155 Ind. 121, 56 N. E. 89; note in 6 L.R.A.(N.S.) 143. The defendant, by holding himself out as an architect and by practising such profession, violated the law in that he had failed to obtain license and register as an architect.

D, Gomstoclc, ¿L Plaintiff claims ostensible agency in the wife to buy the goods and charge the husband with the obligation of payment. “Ostensible agency is where the principal intentionally, or by want of ordinary care, causes a third person to believe another to be his agent who is not really employed by him.” Code, § 6324.

Actions on certificates of deposit. Appeal from District Court, Burleigh County, Honorable W. L. Nuessle, Judge. Performance of consideration by living with a person during his life will not take an oral agreement therefor out of the Statute of Frauds. Austin v. Davis, 128 Ind. 472, 12 L.R.A. 120; Wallace v; Long, 105 Ind. 522, 55 Am.

Action for personal injuries. Appeal from the District Court of Stark County, Honorable W. O. Crawford, Judge. Judgment for plaintiff. Defendant appeals. The injury of the plaintiff was caused by his own negligence. The evidence clearly shows that he knew all about the operation of the feed-grinding machine and was familiar with all its workings, and that any dangers were clear and apparent to one of his knowledge and intelligence.

W. Buttz, Judge. Plaintiff appeals. The register of deeds is a ministerial officer and as such is liable at common law, in the absence of express statutory provision against it, to an action for damages caused by his failure to perform the duties of his office, or for the negligent or illegal performance thereof. Rising v. Dickinson (N. D.) 23 L.R.A.(N.S.) 127, 121 N. W. 616.

Comp. Laws 1913, § 9018; Heard v. Holbrook, 21 N. D. 348, 131 N. W. 251. But the justice did not lose jurisdiction by making the order changing the place of trial, because such order was void in that it was not based upon an affidavit by the party seeking the change. An affidavit made by the attorney is not a compliance with the statute. Comp. Laws. 1913, § 9036; 24 Cyc. 508; Cromer v. Watson, 59 S. C. 488, 38 S. E. 126. Defendant cannot impeach the transcript of the justice.

<p>Contract — by correspondence — making of — evidence.</p> <p>1. Evidence examined and held not sufficient to establish the making of a contract by correspondence.</p> <p>Parties — incapacity of one — to make contract — mental and physical condition.— advanced age — matters for consideration — evidence.</p> <p>2. Evidence examined and held to establish the incapacity of the defendant to make a contract by reason of his mental and physical disability, coupled with his very advanced age.</p> <p>Letters sent through mail —receipt of by person to whom addressed —proof of — properly addressed — proper postoilice — properly stamped — deposited in some postoilice — or postal subdivision — mail boxes — rural routes — presumption of law.</p> <p>3. Before there arises any presumption in law that a letter claimed to be sent by one party to another, the addressee, has been received by the addressee, it must first be proved that the letter so sent was properly addressed to the addressee at his postoffice address, and was properly stamped with sufficient postage thereon and deposited in some postoilice or some subdivision of the postal department where mail may properly and legally be deposited for collection and transmission, such as mail boxes on the rural routes.</p> <p>Letter claimed to have been sent — letter claimed to be answer — value as evidence — how established — proof necessary — foundation.</p> <p>4. Where it is sought to introduce in evidence an answer to a letter which it is claimed was previously sent, before the letter, which is claimed to be tlie answer, can be received in evidence, it must first be proved that the letter .previously sent was properly addressed to the addressee at his postoffice address with sufficient-postage thereon, and that thereafter such letter was deposited in the postoffiee or some branch of the postal service authorized to receive and collect mail for transmission, and, until such proof is made concerning the previous letter, there is no foundation laid for the admission in evidence of the purported answer thereto, and the same is inadmissible.</p>

Action of conversion against the sheriff. Appeal from the District Court of Williams County, Honorable Frank E. Fisk, Judge. Judgment for plaintiffs. Defendant appeals. The right to the possession of the property upon which levy was made, was in Haynes, who made the affidavit of claim by third party, as plaintiff’s agent. His relation to plaintiff was that of factor. Comp.

From a judgment of the District Court of Mercer County, Hanley, •J., plaintiff appeals. Tire power to regulate the transfer of stock in a corporation does not authorize a corporation to control its transferability by prescribing to whom the owner' may sell and upon what terms. Victor G. Bloede v. Bloede, 84 Md. 129, 88 L.B..A. 107, 57 Am. St. Hep. 373, 34 AH 1127.

E. Leighton, Judge. The jurisdiction of the court over the defendant related to but one offense, — that charged in the information,- — and did not attach to the various offenses of which proof was permitted to be offered. Where two or more distinct offenses are testified to by witnesses, it is the duty of the state and it should be required to elect during its direct case, upon which offense it should proceed.

From an order denying a new trial, plaintiff appeals. After a broker has found a customer and negotiations are commenced,, neither the principal nor the customer can break them off and defeat the broker’s right to commissions by concluding the transaction without his aid. 19 Cyc. 262; Scott v. Clarke (S. D.) 54 N. W. 540;, Nicholas v. Jones (Neb.) 37 N. W. 679; Donohue v. Padden (Wis.) 66 N. W. 804; McKenzie v. Lego (Wis.) 74 N. Y . 249; Potvin v. Curran (Neb.) 14 N. W. 400;…

Action on a promissory note. Defense of a material alteration. Appeal from the District Court of Stutsman County, Honorable J. A. Coffey, Judge. Judgment for defendant.

<p>Perpetual injunction — supersedeas bond — not given — injunction abided pending appeal — dismissal of appeal — motion for — moot question.</p> <p>This is an appeal from a perpetual injunction and for costs amounting to $105.80, and, in lieu of giving a supersedeas bond, defendants concluded ta abide the injunction pending the appeal. Hence, a motion is made to dismiss the appeal on the ground that it presents only a moot question. The motion is denied, with costs.</p>

<p>Committing magistrate — authority of — to hold one accused of crime — evidence required — need not be of convincing character beyond reasonable doubt —guilt of accused — sufficient cause to believe.</p> <p>1. In order to authorize a committing magistrate to hold one accused of crime for trial, it is not required that the evidence submitted be of such convincing character as to establish the guilt of the accused beyond a reasonable doubt. All that is required is that the evidence reasonably show that there is sufficient cause to believe the accused guilty of an offense.</p> <p>Criminal charge — commitment on — assailed by habeas corpus proceedings — grounds of — insufficiency of evidence — reasonable and probable cause ■ — review to ascertain.</p> <p>2. Where one who is committed upon a criminal charge assails the validity of the commitment in a habeas corpus proceeding on the ground of the insufficiency of the evidence, the reviewing court will inquire into the evidence only far enough to ascertain whether the accused has been committed on such criminal charge without reasonable or probable cause.</p> <p>Intoxicating liquors — manufacture or sell — no inherent right in citizen to do so — agent of another in such traffic — immunity to citizens — statute does not abridge.</p> <p>3. There is no inherent right in a citizen of the United States to manufacture or sell intoxicating liquors, or to engage in the liquor traffic as the purchasing agent of another. And chapter 194, Laws 1915, which prohibits any person from acting as the agent of another in the purchase or sale of intoxicating liquors, does not abridge any privilege or immunity guaranteed to citizens of the United States by the 14th Amendment to the Constitution of the United States, . - - - -</p> <p>Stattite — liquor laws — do not contravene Constitution.</p> <p>4. Chapter 194, Laws 1915, does not contravene § 1 of the North Dakota Constitution, which declares that “all men are by nature equally free and independent and have certain inalienable rights, among which are those of enjoying and defending life and liberty; acquiring, possessing and protecting property and reputation; and pursuing and obtaining safety and happiness.”</p> <p>Constitution — inhibition — legislative power — passage of laws.</p> <p>5. Chapter 194, Laws 1915, does not violate any express or implied inhibition upon legislative power contained in § 217 of the Constitution, which provides: “No person, association or corporation shall within this state, manufacture for sale or gift, any intoxicating liquors, and no person, association or corporation shall import any of the same for sale or gift, or keep or sell or offer the same for sale, or gift, barter or trade as a beverage. The legislative assembly shall by law prescribe regulations for the enforcement of the provisions of this article and shall thereby provide suitable penalties for the violation thereof.”</p>

Action to set aside a fraudulent conveyance. Appeal from the District Court of Eenville County,' Honorable A. E. Leighton, Judge. Judgment for plaintiffs. • Defendants appeal. “In all cases arising under § 5599 or under tbe provisions of tbis chapter, the question of the fraudulent intent is one of fact, and not of law; nor can any transfer or charge be adjudged fraudulent solely on the ground that it was not made for a valuable consideration.” Comp.