Volume 41 — North Dakota Reports

From a judgment of the County Court of Cass County, Hanson, J., plaintiff appeals. The plaintiff lined the cars and placed them in proper condition for the safe transportation of the grain loaded into them, at his own expense. These expenses were necessary and were incurred for the mutual benefit and protection of both parties. Comp. Laws 1913, § 4707.

L. Nuessle, J. The plaintiff’s theory of this case is that this association is a partnership and that it is liable for the negligent acts of its members. The liability is based upon the doctrine or rule of agency.

: Appeal from tbe District Court of Steele County, Honorable A. T. Cole, Judge. -' It is essential that there should be some valid consideration for tbe release of an obligation, such as a promissory note. Such should also be pleaded and proved. 7 Cyc., 137. '.Mere voluntary declarations made - by' a creditor that a debtor is discharged or released do not bind him. 34 Cyc. 1048; Hayes v. Massachusetts Mut. Ins.

A. Pollock, Judge. Tbe fact that plaintiff in giving bis testimony and relating therein tbe facts as be understood and claimed them to exist, referred to transactions with the deceased, does not render such testimony wholly incompetent and inadmissible. It is not the law that plaintiff, in such cases, is an incompetent witness on every subject and in reference to everything, otherwise relevant, excepting specific transactions had with the deceased.

Cooley, Judge. In an action to recover upon a policy for accident insurance, the complaint must show by proper allegations the occupation in which the insured was engaged at the time of the accident, or death, and it should negative extra or increased hazard, when a smaller sum is recoverable as a result. American.Acci. Co. v. Carson, 99 Ky. 441, 59 Am. St. Rep. 473.

Allen, Judge. Tbe defendant’s motion for a new trial, based on tbe ground of newly discovered evidence, was addressed to tbe 'sound discretion of tbe trial court. Where tbe appellate court is convinced that this discretion was not wisely exercised, or bas been abused, it will not hesitate to overrule the trial court.

M. Hanley, Judge. “Where an aged German woman, unacquainted with business forms, had agreed to convey land subject to a lease and is subsequently induced by false representations of the grantee to execute a warranty deed making no mention of such lease, she is entitled to have the deed reformed in equity so as to conform to the agreement of the parties.” Kyle v. Fehley, 81 Wis. 67, 29 Am. St. Rep. 806; Koch v. Poitras, 36 N. D. 144.

<p>Old highway — relocated, surveyed and improved —by county commissioners — at county expense — crossing defendant’s land — acquiescence in by defendant — obstructing highway — public nuisance — injunction.</p> <p>By the county commissioners of McLean county an old highway crossing the land of defendant was relocated, surveyed, and improved at great expense to the county, and for more than ten years defendant acquiesced in such relocation. Hence, it was entirely proper that he should be enjoined from committing a public nuisance by obstructing the highway.</p>

From a judgment of tbe District Court of Kidder County (on ■change of venue from Burleigh County), Crawford, Special Judge, •defendant appeals. The defendant was put upon trial on information, without having had, or waived, a preliminary examination. Defendant moved to set-aside the information on such ground, and the court erred in denying-such motion. State v. Winbauer, 129 N. W. 97, 21 N. D. 161.

<p>Appeal from tbe District Court of Ransom County, North Dakota, Honorable Frank P. Allen, Judge.</p>

From a judgment of the District Court of Sheridan County, Honorable W. L. Nuessle, Judge, defendant appeals. The receiver of an insolvent corporation, a bank, has no title or im terest in the matter of the statutory liability of the stockholders of such bank, and he cannot maintain an action against a stockholder to recover on such liability. This right only exists in the creditors of the bank. Comp-. Laws 1913, §§ 7995-7908.

From a judgment of the District Court of Foster County, Coffey, J,, plaintiff appeals. Where, between a landlord and tenant, the written lease provides that title to grain raised by tenant shall remain in the landlord till a division and settlement, a mortgage on the grain by the tenhnt does not attach to any of the grain until after such division and settlement, where such lease is properly filed or recorded.

E. Leighton, J. Possession of real property cannot be taken from' one and given to another in an injunction action. Martinson v. Marzolf, 14 N. D. 301. One who holds real estate under an unlawful entry and even without color of title cannot he removed therefrom, and the right of possession determined, in an injunctional action, though such person be insolvent. Warlier v. Williams (Neb.) 73 N. W. 539; Pom. Eq. Jur. §§ 221, 275, 1346, 1347 and 1357; 22 Cyc. 828.

E. Leighton> Judge. Defendant appeals. Extreme cruelty consists of tbe infliction by one party to tbe marriage, “of grievous bodily injury or grievous mental suffering upon tbe other.” Comp: Laws 1918, § 4382; 9 N. D. 188; 7 N. D. 324; and 12 N. D. 17; 9 R. C. L. 333. Condoned offenses should not be considered even in connection with new grounds for divorce. 9 R. C. L. 380; Christianberry v. Christian-berry, Blackf. (Ind.) 202, 25 Am. Dec. 96.

From a judgment of the District Court of Foster County, Coffey, J., plaintiff appeals. “Where it is apparent from the pleadings that a record or instrument will be necessary on the trial, as the best evidence, no previous demand is necessary.” Owens v. Bemus, 22 N. D. 158, with point squarely stated on page 168.

<p>Negotiable instruments — conditional delivery in violation of condition — maker not liable.</p> <p>1. Where a promissory note is executed conditionally, and delivery is made in violation of such conditions, no liability arises on such note.</p> <p>Promissory note — 'false and fraudulent representations — procured by —invalid.</p> <p>2. Where a promissory note is procured by false and fraudulent representations, the same has no validity and the maker incurs no liability thereon.</p> <p>Corporation stock — promissory note given for — conditional making —on note illegally given no liability arises.</p> <p>3. Where a promissory note is given for corporate stock,, assuming that the conditions were such that a promissory note could be legally given, no liability arises upon the note in absence of the delivery of the stock.</p>

G. Crawford, Judge. Defendants appeal. Plaintiff did not keep an itemized account of the materials it furnished, separate and apart from all other items of account against the purchaser, as by law provided, and therefore it had no valid lien. Comp. Laws 1913, §§ 6814, 6815; Larkins v. Blaken, 42 Conn. 204; Talbott v. Goddard, 79 Am. Dec. 277, note.

<p>Appeal from the District Court of Eddy County, Honorable O. W. Bubz, Judge.</p> <p>Defendants appeal.</p>

<p>Advance claims — action to determine plaintiff's title — under mortgage foreclosure— defendant without title.</p> <p>This is an action to determine an adverse claim to a quarter section of land. The plaintiff has title under a mortgage foreclosure. The long answer of defendant covers twelve printed pages. It shows clearly and specifically that the plaintiff has title and defendant has no title.</p>

Plaintiffs appeal. It is no reason why certiorari will not lie in such cases because there may he matters outside the record of which complaint is made. Re Dance, 2 N. D. 184, 33 Am. St. Rep. 768, 49 N. W. 733; Oode Oiv. Proc. art. 2, chap. 34; Oomp. 1887, §§ 5507 to 5516; Comp. Laws, 1913, §§ 8448, 8451; Requisites of Writ; 6 Cyc. 827, 830; Stnmpf v. San Louis Obispo County (Cal.) 82 Am. St., Rep. 350.

<p>^Primary election — removal of county seat — submitting question to voters — injunction to prevent —action for —petition in.</p> <p>1. In an action by plaintiff to perpetually enjoin and restrain defendants from, taking any further proceedings in the matter of submitting to the electors of Steele county at the primary election to he held June 26th, 1918, the question of the removal of the county seat of Steele county, and from distributing ballots therefor, and canvassing returns from the votes at such primary election, such primary election for the removal of said county seat being held under and pursuant to the provisions of chapter 102 of the Session Laws of 1917, which relates only to the removal of that class of county ■seats not on a railroad or an interstate river, it is held the relief prayed for should not be granted and the application for perpetual injunction should be -denied.</p> <p>Petition — form and substance — notice — primary election ballot —laws relating to — compliance with.</p> <p>2. The form and substance of the petition, notice, and ballot used in said primary election were a sufficient compliance with the requirements of chapter 102 of the Session Laws of 1917, and other laws adopted as' a part thereof.</p>

A. Coffey, Judge. “A bill for divorce, upon a charge of adultery, should not be filed upon general suspicion, nor until the discovery of some specific act or of tbe facts from wbicb such, act must be inferred, and these must be sufficiently stated to identify the act upon which the suit is founded.” Freeman v. Freeman, 31 Wis. 235. “Neither party has the right to make such a charge against the other on mere suspicions, relying upon being able to fish up testimony before the…

Defendant appeals. The fees collected by a sheriff in all actions or proceedings wherein he acts in his official capacity and as required to do by law must be by him turned into the county treasury, and he must report to the county commissioners all fees collected. Comp. Laws 1913, § 8081.

. Appeal from, tbe District Court of Pierce County, Honorable A. G. Burr, Judge. Plaintiff appeals. A principal is liable for an act of conversion committed by bis agent while proceeding within the scope of his authority. 38 Cyc. 2056; Farmers, etc. Bank v. Wood, 143 Iowa, 635; 118 N. W. 282; 120 N. W. 625; Feury v. McCormick, etc. Co. 6 S. D. 396; 61 N. W. 162; 31 Cyc. 1582, and cases cited in note 22; 8 N. D. 103; Comp.

Defendant appeals from a judgment and from an order denying its alternative motion for a judgment notwithstanding the verdict or for a new trial. Improper statements made by section boss to an employee, and calling him vile and approbrious names, was not within the scope of the employment of such section boss, nor in the furtherance of his master’s business.

T. Cole, J. A warranty is an engagement by wbicb a seller assures to a buyer the existence of some fact affecting tbe transaction, whether past, present, or future. Comp. Laws 1913, § 5973; 35 Cyc. 373-375 inclusive. Where the contract is in writing it is for the court to construe it and to decide whether it contains a warranty or not. Hubert v. Young, 12 L.R.A.697; Wason v. Rowe, 16 Yt. 525, 12 L.R.A. 694.

T. Oole, J. Defendant appeals. Upon an express contract set out in tbe complaint, tbe proof must be specific in support thereof, and proof of a different agreement, if allowed, amounts to a failure of proof, and entitles defendant to a directed verdict, upon motion therefor. Graangaard v. Betzina, 83 N. D. 267; Chaffee v. Widman, 48 Colo. 34, 139 Am. St. Rep. 220, 108 Pac. 995.

L. Nuessle, Judge. Defendant appeals. The defendant was not guilty of any negligence. He set fire to a straw pile on his farm so as to remove it out of his way. No prairie fire was set by him or allowed to escape from him. There was a lapse of twenty days after the straw pile was set on fire before it escaped into the field and prairie. A very strong wind came and fanned the fire into a flame. Defendant supposed the fire had burned out.

Prom an order of the District Court of Stutsman County, Goffey J.', plaintiff appeals. Tbe court erred in changing tbe county or place of trial over objection, as no demand therefor was made “before tbe time for answer had expired.” Comp. Laws 1913, § 7418.

Action to determine adverse claims to real property, to recover the possession thereof, and damages for the value of the use of the same. From a judgment in favor of plaintiffs defendants appeal. A person having an equitable estate in real property may maintain an action to determine adverse claims to said property. Comp. Laws 1913, § 8144; Balrymple v. Security Loan & T. Co. 9 N. B. 306; Mitchell v. Black Eagle Min.

W. Bidlz, Judge, wherein Qow A stipulation and settlement of matters involved in pending litigation cannot be arbitrarily withdrawn by one of the parties in order to enable him to make some different claim to that expressed and acknowledged in such stipulation and settlement, without returning or offering in good faith to return the consideration.

A. Coffey, J. Where a party is asked the question,' “Did you comply with your contract,” a mere legal conclusion is involved and asked, and is objectionable on such ground and as incompetent, and the objection should have been sustained.

From a judgment of the District Court of Ward County, Leighton, J., defendants appeal. The appellants claim that the respondent has not complied with the laws of this state, nor does his complaint or petition herein contain a statement of facts showing his compliance with the laws of this -state, or that he is a properly qualified person to admit to the practice of dentistry in this state.

Action to vacate final decree of county court. From an order of tbe district court affirming tbe order of tbe county court tbe defendant appeals. An order or decree of distribution made by a county court is of equal rank with judgments entered by courts of record. Comp.

T. Cole, J. Action to recover damage for personal injuries. From a verdict directed and judgment entered for the defendant, plaintiff appeals. Negligence is sometimes defined to consist of failure to exercise that degree of care demanded by tbe circumstances, — a failure to observe a legal duty. 20 It. C. L. p. 9.

M. Hanley, Judge. In granting a motion for a directed verdict, the order of the court must stand or fall upon the grounds specified in the motion. Erickson v. Wiper, 33 N. D. 193. It is not necessary to allege a demand for possession of the property in conversion cases. More Bros. v. Western Grain, 31 N. D. 369.

Fisk, Judge. The pledgee is bound to exercise the degree of care which an ordinarily prudent man usually bestows on his own property of like nature under the^pcumstances. Jones, . Liens, 2d ed. p. 431. Wfiei^a chose in action such as a bond, note, or accepted order of al&tird person is transferred and delivered to a creditor as collateral security it is the duty of the pledgee to use reasonable care and diligence to make such collateral available. 22 Am. & Eng. Enc.

Action for fraud and deceit. Appeal from the District Court of Griggs County, Honorable J. A, Coffey, Judge. Judgment for defendant set aside and a new trial ordered. Statement of facts by Bruce, Ch. J. This is an appeal from an order of the district court setting aside a special verdict and tbe judgment entered thereon and ordering a new trial.

Actions to recover for injuries occasioned by tbe flooding of plaintiff’s premises. Appeal from tbe District Court of Stark County, Honorable W. G. Grain ford, Judge. Motion for judgment on special verdicts denied and new trials ordered. Defendant appeals. Statement of facts by Bsuce, Ob.

<p>Appeal from the District Court of Kidder County, Honorable IF. 'H. Nuessle, Judge.</p> <p>Defendant appeals.</p>

From a judgment of the Distinct Court of Grand Forks County, Cooley, J., plaintiff appeals. The law which prescribes the time of review of taxation assessments gives all the notice required; and the proceedings by which the valuation is determined, although it may lead to the sale of the delinquent property for taxes, is due process. Merchants etc. Bank v. Pennsylvania, 167 TI.

T. Cole, J. Motion to dismiss interposed by respondent. Where both judgment and order denying a new trial are appealable both may be joined in one appeal. Hedderich v. Hedderich, 18 N. D. 488, 123 N. W. 276; Sucker State Drill Co. v. Brock, 18 N. D. 8, 118 N. W. 348, 18 N. D. 598, 120 N. W. 757, 18 N. D. 532, 123 N. W. 667; Shuman v. Buud, 32 N. D. 327, 155 N. W. 688. Two wholly independent appeals cannot be taken by one notice of appeal.

Plaintiff appeals from a judgment - dismissing a garnishee action. Held: “Where the garnishment proceedings were based upon a false affidavit, the proper procedure was either upon a motion or order to show cause to have same dismissed.” Orton v. Noonan, 27 Wis. 572; German-American Bank v. Butler-Mueller Co. (Wis.) 58 N. W. 746; Thoen v. Harnstrom (Wis.) 73 N. W. 1011; Graves v. Posner (Iowa) 82 N. W. 445.

Defendant appeals from, an order denying bis motion for a change of place of trial. It is tbe duty of tbe court to look to the affidavits as well as to tbe issues to be tried and determine from the entire showing made in which of tbe two courts a trial will be most accessible to tbe greatest number of witnesses required. Clanton v. Ruffner (Cal.) 20 Pac. 676; Woolworth v. Block, 86 N. Y. Supp. 1111; Church v. Swigert, 90 N. Y. Supp. 939.

Erom a judgment of the District Court of Ward County, Leighton> J., tbe defendant, Northern Land & Mortgage Company, appeals. Lands held under the United States Homestead Laws prior to the issuance of patent shall not in any event be held liable to the satisfaction •of any debt contracted prior to the issuing of the patent therefor. U. S. Rev. Stat. § 2296; Comp. Laws 1913, § 6824; Green v. Tenold, 14 N. D. 46.

Action on promissory note. Appeal from judgment entered in the District Court, Sargent County, F. P. Allen, Judge. “If a note be not properly indorsed it is not transferred in good faith under the merchant.” 4 Am. & Eng. Enc. Law, 311; 7 Oyc-791 & 926; Comp.

<p>Appeal from the District. Court of Ward County, North Dakota, Leighton, J.</p> <p>Defendant appeals.</p>

L. Nuessle, Judge of said Court. Section 3818, subdivisions 5 and 7, Compiled Laws of 1913, does not authorize making of a contract which either fixes or regulates rates, but merely authorizes the granting of a franchise or license to use the streets. Madison v. Madison Gas Co. (Wis.) 8 L.R.A.(N.S.) 520; Winchester & L. Tump. Road Co. v. Croxton (Ky.) 33 L.R.A. 177; Benwood v. Public Service Commission (W. Ya.) L.R.A.1915C, 261; State ex rel. Webster v. Superior Ct.

. Original proceeding by tbe state, on tbe relation of William Langer, Attorney General, for tbe issuance of writ of mandamus to compel tbe defendant, N. 0. McDonald, to surrender tbe office of superintendent of public instruction to Minnie’J. Nielsen.

<p>Appeal from District Court of Rolette County, Butte, J.</p> <p>Action upon a policy of fire insurance; appeal from judgment rendered against the defendant; motion to dismiss the appeal by respondent.</p> <p>Unless notice of entry of judgment is served upon the proper parties the statute does not run against the time for appeal. Comp. Laws-1913, § 7678; Prescott v. Brooks, 11 N. D. 93; First Nat. Bank v. McCarthy (S. D.) 83 N. W. 423; Mallory v. See (Cal.) 61 Pac. 1123; Clark Imp. Co. v. Wadden (S. D.) 136 N. W. 111.</p> <p>If no appeal is taken within six months after notice of entry of judgment, court loses jurisdiction both of the person and of the subject-matter of the action. Comp. Laws 1913, § 7820; Keogh v. Snow (N. D.) 83 N. W. 864; Barnett v. Will (N. D.) 166 N. W. 511.</p> <p>Actual notice of the entry of judgment is sufficient. Brooks v. Bigelow (S. D.) 68 N. W. 286; Braeley v. Marks (Wash.) 43 Pac. 27.</p> <p>Even when both parties have asked for a directed verdict, and the court takes the case away from the jury, it will still be vested as a case triable by jury on appeal. Comp. Laws 1913, § 7846; Laffay v.. Gordon, 15 N. D. 282, 107 N, W. 969; Blakemore v. Cooper, 15 N. D. 5, 106 N. W. 566; Barnum v. Gorham Land Co. 13 N. D. 359, 100 N. W. 1079; American Case & Register Co. v. Boyd, 22 N. D. 166, 133 N. W. 65; First M. E. Church v. Gadden, 8 N. D. 162, 77 N. W. 615; Stanford v. McGill, 6 N. D. 536, 72 N. W. 938.</p> <p>In the absence of any statutory provisions, or provisions in the charter of a corporation, limiting the method by which a company may bind itself by contract, an oral or parol contract of insurance is vahd. Brown v. Franklin Mut. E. Ins. Co. (Mass.) 43 N. E. 512; Baker v. Westchester E. Ins. Co. (Mass.) 38 N. E. 1124; 19 Cye. 600; Goodhue t. Hartford F. Ins. Co. (Mass.) 55 N. E. 1039; Insurance Co. of N. A. v. Bird (Ill.) 51 N. E. 686; Firemen’s Ins. Co. v. Kuessner (Ill.) 45 N. E. 540; Stoehlke v. Hahn (Ill.) 42 N. E. 150; Sanford v. Orient Ins. Co. (Mass.) 54 N. E. 883; Newark Mach. Co. y. Kenton Ins. Co. (Ohio) 35 N.-E. 1050; Phoenix Ins. Co. v. Ireland (Kan.) 58 Pac. 1024; Hardwick v. State Ins. Co. (Or.) 26 Pac. 840; Stehlick y. Mechanics Ins. Co. (Wis.) 58 N. W. 379; Revere F. Ins. Co. v. Chamberlain, 18 N. W. 338; Zell v. Herman F. Ins. Co. (Wis.) 44 N. W; 828; King v. Hekla F. Ins. Co. 14 N. W. 297; Salisbury v. Hekla F. Ins. Co. (Minn.) 21 N. W. 552; Dibble v. Northern Assur. Co. (Mich.) 37 N. W. 704; Campbell v. American F. Ins. Co. (Wis.) 40 N. W. 661.</p>

0. Crawford, Special Judge. Plaintiff appeals from an order sustaining exceptions to, and suppressing, a deposition. Notwithstanding the language of the statute is mandatory, the statute is one regulating civil procedure, and is construed to be directory only. Patrick v. Numberg, 21 N. D. 380. The defendant failed to make any showing that it was prejudiced by reason of the failure of the signature of the witness. This is essential in order to suppress depositions.

Action for personal injuries; appeal from judgment rendered for plaintiff and from order of trial court denying motion for judgment non obstante. If the employee having an opportunity of acting in any one of two or more ways,' one of which is less safe than another, and knowingly chooses the less safe mode, he is deemed negligent and disentitled to recover, although the employer may also have been negligent. German Lumber Co. v. Hannah, 60 Fla. 10; Sehantz v. Eckhardt Mfg.

Action for services. From judgment entered and order denying judgment non obstante, District Court of Renville County, K. E. Leighton, J., defendant appeals. There can be no recovery for services rendered a parent in the ab* sence of an expressed promise or contract. 18 Cyc. 412; 11 R. C. L. § 233, p. 208; 153 Mich. 206, 126 Am. St. Rep. 479; Zimmerman v. Zimmerman, 129 Pa. 229, 15 Am. St. Rep. 720; Taylor v. Thieman, 132 Wis. 38, 122 Am.

Action to enjoin discharge of waters. From a judgment entered for plaintiffs and interveners, defendants appeal. The case of Soules v. N. P. R. Co. 34 N. D. 7, 157 N. W. 823, states the two rules as to surface, water. See Hannaher v. St. Paul, etc., R. Co. 5 Dak. 1, 37 N. W. 717; Carroll v. Rye Twp., 13 N. D. 458, 101 N. W. 894; 40 Cyc. p. 639, where the text defines surface waters; Brandenberg v. Zeigler, 62 S. C. 18, 89 Am.

From an order of the District Court of Burleigh County, Nuessle, J. Commissions such as the tax commission of North Dakota are mere «reatures of the statute, and possess no power except what the statute expressly confers upon them. Bailroad Comrs. v. Oregon Biver &• Nav. Co. 17 Or. 85, 2 L.B.A. 195, 19 Pac. 702; Grand Bapids, Indiana B. Co. v. Michigan B. Commission (Mich.) 150 N. W. 154; Mechem, Pub. Off. § 511.

Fisk, Judge. The declarations of an assignor after he has made the assignment and thus parted with his interest are not competent as against the as-signee as admission, and this is true even though the action is brought in the name of the assignor if prosecuted for the benefit of the assignee. 1 Ene. Ev. p. 535, and cases cited. The admission of grantors and former owners are not admissible against -their grantees or those in priority of them if made after the grant. 1 Ene.

W. Buttz, Judge. In tbe absence of any statute making vaccination a condition precedent to tbe right of admission to tbe public schools, neither a board of health having general control of matters affecting the public health, nor a school board, acting under its general power or under the board of health, has authority to exclude children from the public schools where smallpox does not already exist, or is reasonably apprehended.

An appeal from tbe District Court of Barnes County, Honorable J. A. Coffey, Judge. • Tbe burden was on tbe plaintiff to show that Grant, as secretary and treasurer, was authorized by tbe corporation’s by-laws, or some resolution of tbe corporation, to execute tbe note. Jacobus v. Jamestown Mantel Co. (N. Y.) 105 N. E. 210; Matber v. Union L. & T. Co. 7 N. Y. S. 213; Oleott v. Tioga E. Co. 27 N. Y. 546.

<p>Evidence — transactions with deceased persons — admissibility.</p> <p>1. In an action against an executor and tbe heirs at law of the estate of a deceased, to secure the delivery of a deed and to quiet title to realty claimed by the estate, the testimony of the executor, the husband of the plaintiff, concerning a transaction had with the deceased, is not made admissible under the provisions of § 7871, Compiled Laws 1913, subd. 2, by calling such witness as an adverse party, where it appears that such evidence and such witness are antagonistic to the interests of the estate.</p> <p>Evidence — competency of witnesses.</p> <p>2. A witness who is incompetent to testify under the provisions of § 7871, subd. 2, Compiled Laws 1913, directly to the delivery of a deed by the deceased, is likewise incompetent to testify as to the possession of the same, where the purpose thereof is to establish that a delivery or nondelivery thereof must be inferred.</p> <p>Trial under Newman Act —record — encumbrance of record.</p> <p>3. In trials under the Newman Act it is the duty of attorneys to carefully refrain from encumbering the record with incompetent, immaterial, or irrelevant testimony, and the trial court may properly indicate during the course of the trial its views when the attorneys are so doing.</p> <p>Quieting title — determination of. adverse claims — judgment.</p> <p>4. In an action to determine adverse claims, where the executor and the heirs at law of the estate of the deceased are parties thereto, and the findings of the trial court are in favor of the estate, the judgment thereupon should quiet title in. the heirs at law, and in the executor for purposes of administration.</p>

District Court of Ward County, Leighton, J. Tbe purchasers furnished must be ready, willing and able to buy at tbe price specified. Ball v. Dolan, 101 N. W. 722; Anderson & Jorgenson v. Johnson, 16 N. D. 176; Zeimer v. Antisell (Cal.) 17 Pac. 642. The purchaser must be produced within the time limited in his contract. Zeimer v. Antisell (Cal.) 17 Pac. 642; Anderson & Jorgenson v. Johnson, 16 N. D. 176.

<p>Attorney and client — attorney’s fees — when client obstructs sale of land from which fees are to he paid, attorney is entitled to reasonable compensation.</p> <p>1. In an action brought for the recovery of reasonable attorneys’ fees earned in conducting litigation for the defendant, and for necessary expenses incurred therein, the evidence is examined and held to support the verdict.</p> <p>Attorney and client — where attorney is to be paid from proceeds of sale of land, relationship is one of mutual confidence.</p> <p>2. Where an attorney is employed to institute partition proceedings for a client, and it is agreed that he is to be compensated and reimbursed out of the proceeds of a sale of the real property to be partitioned, the relationship established between the attorney and client is one of mutual confidence; and where the client, without communicating with his attorney, obstructs the progress of the proceedings, the attorney is entitled to reasonable compensation for his services rendered and to reimbursement of his expenses.</p>

L. Nuessle, Judge. The defendant and the appellant occupied the premises under a written lease from year to year, was tenant for an uncertain number of periods of time of twelve months’ duration each. Tiedeman, Real Prop. 3d ed. ¶ 164; Washb. Real Prop. ¶ 198; 24 Oye. p. 1028; Gear, Land. & T. §§ 29 to 33; Kaufman v. Mastín (W. Ya.) 25 L.R.A. (N.S.) 855; Hunter v. Frost (Minn.) 49 N. W. 327; 2 Bouvier’s Law Diet. “Tenant; ” Comp.

The defendant, Frank Finlayson, was convicted of criminal contempt for having violated an in junctional order which enjoined him from maintaining a liquor nuisance, and appeals from the judgment. In a criminal proceeding the defendant is entitled to all the rights and benefits provided for in the trial of criminal cases and entitled to a trial by jury. N. D. Comp, laws, §§ 8184, 10,117, 10,119; N. D. Const. §§ 7, 13, art. 1; Fed. Const.

Fisks J. “The request may be valid, although made before a testator has signed the will, on a previous day, or after the witnesses have signed.” 40 Cyc. 1115, 1116. The request to the witnesses to sign may be made by words or signs. No particular form of request is necessary, and it may be implied from acts. 30 Am. & Eng. Enc. Law, 596; 1 Schouler, Wills, § 329; 40 Cyc. 1115, 1116; Rogers v. Diamond, 13 Ark. 474; Schierbaum v. Sehemme, 157 Mo. 1, 80 Am.

From a judgment of the District Court of Richland County, Allenf J., defendant appeals. “When there is no contract or usage to the contrary the rental paid for land is presumed to be for one year.” Comp. Laws 1913, §§ 6092-6096. “In replevin the value of the property at the time of its talcing is the correct and only measure of damages.” Comp.

'Appeal from the District Court of Nelson County, North Dakota, Honorable Chas. M. Cooley, Judge.

Civil action for assault and battery. A nonprofessional witness wbo bas observed a sick or injured person may testify as to bis opinion as to sucb person’s pbysicial condition. Hall v. Austin, 73 Minn. 134, 75 N. W. 1121; Jackson v. Wells, 13 Tes. Civ. App. 275, 35 S. W. 528; Wright v. Ft. Howard, 60 Wis. 119, 18 N. W. 750; Smalley v. Appleton, 70 Wis. 344; Keller v. Gil-man, 93 Wis. 9, 66 N. W. 800; Carthage Turnp. Co. v. Andrews, 102 Ind. 138.

If the terms of a promise are in any respect ambiguous or uncertain it must be interpreted in the sense in which the promisor believed at the time of making it that the promisee understood it. Comp. Laws 1913, §§ 5900, 5914; Rindge v. Judson, 24 N. Y. 64; Smith v. Mal-lison, 148 N. Y. 241; Scott v. Wyatt, 24 Ala. 489; Tootle v. Elge-setter (Neb.) 15 N. W. 228; Locke v. MeVean, 33 Mich. 472; Drum-mond y. Prestman, 12 Wheat. 515; Bridgeport v. Iowa, etc. (Iowa) 107 N. W. 937.

0. Crawford, Judge. “If there was any defect in description on record the fact that description referred to the plot would cure it, because when an instrument refers to a plot that plot becomes a part of the description.” Boise City v. Hon. (Idaho) 94 Pac. 167; McCullough v. Olds (Cal.) 41 Pac. 420; Peoria Gas & E. Co. v. Dunbar (Ill.) 85 N. E. 229; Park Comrs. v. Taylor (Iowa) 108 N. W. 927; Neumeister v. Goddard (Wis.) 103 N. W. 241; Zuleger v. Zeh (Wis.) 150 N. W. 406;…

“Tbe party making motion for judgment notwithstanding the verdict must base it upon a state of facts that will warrant the court in granting it without trespassing upon the juries’ province to be judges of all the facts in the case.” ¿Etna Indemnity Co. v. Schroeder, 12 N. D. 110; Nelson v. Grondahl, 12 N. D. 130; Meehan v. Great Northern R. Co. 13 N. D. 432; Houghton Implement Co. v. Yavrowski, 15 N. D. 308. “Where a substantial conflict exists, and there is sufficient…

It was prejudicial error for tbe court to rule out as immaterial a question on cross-examination wbicb tended to prove that a third party,: and not tbe mortgagor, owned tbe horses when tbe mortgage was given.' Bidgood v. Monarch, 9 N. D. 627; Hawk v. Konouzke, 10 N. D. 39; Thurston v. Osborne, 13 N. D. 512; James v. Wilson, 8 N. D. 186. We were not first raising this ownership in third person on appeal. Pitts v. Young, 62 N. W. 432.

Action to determine adverse claims. Appeal from judgment rendered for plaintiff in District Court, Het-tinger County, Crawford, J. “When a transfer of real property is made to one person and the consideration therefor is paid by another, a trust is presumed to result in favor of the person by or for whom such payment is made.” Comp.

•Appeal from tbe District Court of Hettinger County, North Dakota, Honorable W. 0. Crawford, Judge. If the plaintiff could not recover against the defendants as vendees under this contract, then he cannot recover against them as brokers.

Statement by Biedzelu, J. This is an. appeal from a judgment entered in the district court of McKenzie county, under which the defendant and appellant is compelled to construct and maintain a platform and station within the village of East Fairview, North Dakota,, sufficient to care for such passengers as may take the train at that place.

From a judgment of tbe District Court of Burke County, Leighton, J., plaintiffs appeal. “The test of usury is: Will the contract if performed result in producing to the lender a rate of interest greater than is allowed by law, and was that result intended?” Rantalla v. Haish, 156 N. W. 686. Compound interest, or interest upon interest, constitutes usury when contracted for contemporaneously with the creation of the original debt. Note in 33 L.B,.A.(N.S.) 296.

E» Leighton, Judge. Judgment for plaintiff. Defendant appeals. It is not clear from tbe decisions of tbe Federal Supreme Court just wbat work is so connected witb interstate commerce as to give an employee tbe benefit of tbe Federal Employers’ Liability Act. 35 IL S. Stat. at L. 65 et seq.; Comp. Stat. §§ 8657 et seq.; N. Y. Cent. E. Co. v. Carr, 238 II. S. 260; C. R. & Q. R. Co. v. Harrington, 241 IT. S. 177, 60 L. ed. 942; Sbanks v. Del.

From an order of tbe District Court of Grand Forks County, Cooley, -J., defendant appeals. “Tbe plaintiffs’ complaint does not show whether or not tbe tax was paid under protest, and where paid without protest it cannot be recovered.” Diocese v. Cass County, 28 N. D. 209; Lewis v. San Francisco, 2 Cal. App. 118, 82 Pac. 1196; Phoebus v. Manhattan Social Club, 105 Ya. 144, 8 Ann. Cas. 667; 45 Am. Dee. p. 156 and note, Compulsion of Legal Process; Cooley, Taxn.

In order to recover under § 10,050, Comp. Laws 1913, it is necessary that the plaintiff show that he is the owner of the property, and such owner at the time of its destruction. Comp. Laws 1913, § 10,050; Scott v. Trebilcock, 21 S. D. 333, 112 N. W. 847; Bracher v. Shelby Iron Co. 144 Ala. 659, 40 So. 80; Noons v. Swartz, 47 Pa. Super. Ct. 217. The measure of damages done to property is the market value at the time and place of the injury.

From a judgment of tbe District Court of Wells County, Coffey, J., defendants appeal. A vendor is not obliged to regard an assignment in the absence of a proper notice thereof. Comp. Laws 1913, § 7405, 39 Cyc. 1676. There is no evidence or reason why a court of equity should protect plaintiff from the effect of a statutory cancelation of the contract. Nelson v. McCabe, 163 N. W. 724. The evidence does not show any tender by plaintiff nor any offer or ability to perform.

Appeal on subcontract and surety bond for labor and material. Appeal from order of District Court, Divide County, Leighton, J.5 overruling demurrers to answer of defendant Trust Company. The rule requiring pleadings to be liberally construed applies to allegations wbicb are made and are ambiguous and defective, and bas no reference to tbe omission of material averments. McCormick Harvesting Mach. Co. v. Rae, 9 N. D. 482- 31 Cyc. p. 86, § 8.

<p>Appeal from District Court, Divide County, K. E. Leighton, J.</p> <p>The school boards have only such powers as are granted by statute. Comp. Laws 1913, § 1174; Kretchmar v. School Board, 34 N. D. 403; Capital Bank v. School Dist. 6 N. D. 288, 42 N. W. 774; Farmers & M. Bank v. School Dist. 6 N. D. 255, 42 N. W. 767; 35 Cyc. 849, 925; State ex rel. Diebold Safe & Lock Co. v. G'etchell, 3 N. D. 243.</p> <p>Ratification presupposes the power in the board to make the original contract, and that body having no such power, there is no question here of ratification. Engstad v. Dinnie, 8 N. D. 1; Storey v. Murphy, 9 N. D. 115; Roberts v. Fargo, 10 N. D. 230.</p> <p>. The school district could authorize the building of the schoolhouse, and it could ratify what it could authorize. McGillivary v. Joint School Dist. 112 Wis. 358, 58 L.R.A. 100, and cases there cited. Mills v. Gleason, 11 Wis. 470; Kane v. School Dist. 52 Wis. 502, 9 N. W. 459 ; Nevil v. Clifford, 63 Wis. 435, 24 N. W. 65; Koch v. Milwaukee, 89 Wis. 220, 62 N. W. 918; Carbon County School Dist. v. Western Tube Co. 13 Wyo. 304, 80 Pac. 155; 35 Oye. 973.</p> <p>A municipal corporation may be held for benefits received although the contract through which the benefits were received is void. Livingston v. School Dist. 76 N. W. 301; People’s Bank v. School Dist. 3 N. D. 496, 67 N. W. 787; 35 Cyc. 926.</p> <p>A school district may become bound by an implied contract where it received and retains money and property. Kenmare School Dist. - v. Cole, 36 N. D. 32, 161 N. W. 542; Davis v. School Dist. 45 N. W. 989; 35 Cye. 962, 963, 964; Brown County School Dist. v. Sullivan, 48 Kan. 624, 29 Pae. 1141; Board of Education v. Carolan, 182 Ill. 119, 55 N. E. 58; Nichols v. Pierce County School Dist. 39 Wash. 137, 81 Pac. 325; Clark School Twp. v. Home Ins. Co. 20 Ind. App. 543, 51 N. E. 107; Eisher v. Attleborough School Dist. 4 Cush. 494; Springfield Furniture Co. v. Faulkner County School-Dist. 67 Ark. 236, 54 S. W. 217; Kichards v. Jackson School Twp. 132 Iowa, 612, 109 N. W. 1093; Andrews v. School Dist. 37 Minn. 96, 33 N. W. 217; Keyser v. Sumapee Dist. 35 N. H. 477.</p>

M. Cooley, Judge. “The affidavit of merits and verified proposal answer are clearly within the rule of this court’s requirements as to opening defaults.55 Wheeler v. Gaster, 11 N. D. 347; Bismarck Grocery Co. v. Yeager, 25 N. D. 547; Getchell v. Great Northern N. Y. Co. 24 N. D. 487; Sargent v. Kindred, 5 N. D. 8. “The showing made by defendant and appellant does not entitle him to have the default opened.” Bazal v. St. Stanislaus Church, 21 N. -D. 602; Barney v. Smith, 106…

Fisk, Judge. There are two kinds of fraud, actual and constructive. In the case at bar, we have to deal with the fornjer only. Our Civil Code, Compiled Laws, § 5849, defines actual fraud. Comp. Laws 1913, § 5944; 13 R. C. L. p. 230, § 3, p. 240, and authorities; Nounnan v. Sutter County Land Co. 81 Cal. 1, 6 L.R.A. 219, 22 Pac. 515; Marehall McCartney Co. v. Holloran, 15 N. D. 71; Davids v. dor den, 47 Cal. 351.