Volume 44 — North Dakota Reports

Action on promissory notes given for the purchase price of a stallion. From a judgment in District Court, Burke County, Leighton, J., directed for the plaintiff, the defendant has appealed. The motion made for a directed verdict in this case is in the nature of a demurrer to the evidence, and therefore all fair inferences from the evidence must be drawn in favor of the party against whom such verdict is directed.

This is an appeal from the District Court of Ward County, K. E. Leighton, J. An agreement cannot be held uncertain if the court can see what the parties intended and enforce the same. 9 Cyc. 250, and authorities cited. A promise not in itself certain can be rendered certain by reference to something certain. Supra; Cold well v. School Dist. 55 Fed. 372; Lungerhausen v. Crittenden (Mich.) 61 N. W. 270.

“Where parties have been diligent in their efforts to be ready for trial, but have been prevented by circumstances beyond their control, the court should grant them a continuance.

G. Burr, J. If process, either civil or criminal, is wilfully made use of for a purpose not justified by law, this is an abuse for which an action will not lie. Cooley, Torts, 2d ed. 220; 32 Cyc. 542. An action based on the abuse of process differs from an action for malicious prosecution in at least two respects: First, in that want of probable cause is not an essential element; and, second, that it is not essential that the original proceeding shall have terminated.

rA. Ooffey, J. Tbe authorities are conclusive on the subject that if the complaint alleges an agreement, constituting an express trust, then there can be no resulting or implied trust. Golschalck v. Fulmer, 51 N. E. 852; Potter v. Clapp (111.) 96 Am.

Defendants appeal from an order appointing a receiver. “The appointment of a receiver pendente lite is a matter committed to the sound discretion of the judge before whom the proceeding is pending.” Cameron v. Groveland Improv. Co. 20 Wash. 169, 72 Am.

Action for damages, through negligent operation of an automobile. From order of the District Court, Divide County, Leighton, J., sustaining demurrer, plaintiff has appealed.

Action to recover for goods sold and delivered, in District Court, Grand Forks County, Cooley, J. From judgment entered upon a directed verdict of dismissal the plaintiff has appealed. “In no case can the plaintiff recover on the general counts where the special agreement (executory) continues in force.” Lindingdale v. Livingston, 10 Johns. 37. “When the terms of a special contract have been so far performed that nothing remains but a mere debt or duty to pay money, the…

TP. Buttz, Judge. “If two ways are open to a person to use, one safe and the other dangerous, the choice of the dangerous way, with knowledge of the danger, constitutes contributory negligence.” 29 Cyc. 520. “In every case there is a preliminary question for the judge whether there is evidence from which the jury may properly proceed to find a verdict.” Anderson v. Phillips, 160 N. W. 315.

From a judgment of the County Court of Ward County, Murray, J., plaintiff appeals. “An agency, like any other fact, may be proved by circumstances and the conduct of the parties and the relation that had previously existed between them.” 2 Jones, Ev. § 256; Grant Co. Bank v. Northwestern Land Co. 28 N. D. 479; Lake Grocery Co. v. Chiostri, 34 N. D. 399; 31 Cyc. 1574. “Where one dealt with an agent who failed to disclose his principal, his right to proceed against the…

Action for indecent assault in District Court, Barnes County, Coffey, J. From a judgment for the plaintiff and an order denying a new trial the defendant appeals. Excessive damages appearing to have been given under the influence of passion or prejudice, and insufficiency of the evidence to justify the verdict, are grounds for a new trial. Comp.

E. Leighton, Judge. A bailor may sell the subject-matter of the .bailment and thereby confer on the purchaser an immediate and valid title thereof. Hodges v. Hurd, étl 111 363; Chamversburg Nat. Bank v. Buckeye Iron & Brass Works, 46 111. App. 526; State v. Fitzpatrick, 64 N. W. 185; Erwin v. Arthur, 61 N. W. 386; Heine v. Anderson, 2 Duer, 318; Smith v. Ball, 9 Mo. 873; Hall v. Griffin, 10 Bing. 246; Biddle v. Blair, 148 Ala. 461, 42 So. 560.

T. Cole, Judge. Where an officer of a bank, without authority to do so, borrowed money in the name of this bank and pledged certain of the bank’s assets as security for the loan, and the borrowed money was received and used by the bank, and the transaction was such that the directors had, or ought to have had, knowledge of it, the corporation is estopped to deny the authority of its officer to make the contract in its behalf by which the money was procured. First Nat.

Plaintiff appeals from an order requiring her to comply with the provisions of a final decree of divorce. The court, under the showing made, is not justified in making the order; and, second, that the order is one that does not appeal and cannot appeal to the equitable side of this court. See Rindlaub v. Rind-laub, 19 N. D. 353; Rindlaub v. Rindlaub, 28 N. D. 168. The adjudication as to the real property and the lien cannot be modified by this court.

<p>Brokers — application of money by broker — where bx’oker paid sum not authorized by owner, the broker becomes liable for the same — where such payment is made by broker he is entitled to be subrogated to judgment creditors.</p> <p>The plaintiff employed the defendants to make for her a loan of $800 on a homestead, and out of the loan to pay expenses, liens and claims against the land. Defendants paid $158.07 which was not a lien or legal claim against the land, and withheld the same from the plaintiff. Held: That in this case</p> <p>judgment was justly given against the defendants for $158.07, with interest and costs; also, that defendants having paid a judgment in favor of J. M. Hanley are entitled to be subrogated as judgment creditors.</p>

Remmi, Judge. “A deposition of a witness taken by plaintiff and filed in the suit is properly excluded on plaintiff’s objection that the witness is present.” Schmitz v. St. Louis (Mo.) 23 L.E.A. 250, 24 S. W. 472; Nielson v. Hartford, 67 Conn. 486, 34 Atl. 620; Fest v. Kane, 92 Ga. 187, 22 L.R.A. 315, 18 S. E. 18; McClure v. Sheet, 68 Tex. 426, 4 S..

Defendant appeals from the judgment and an order denying a new trial. Parties are, or should be, bound by their agreement, and therefore there is no ground for implying a promise when there is an express contract. Shaw v. Armstrong (Mich.) 50 N. W. 248. It is error for the jurors to act upon their personal knowledge of any particular transaction involved in a case for their consideration.

E. Leighton, Judge. “When the court directs a verdict for either party the evidence of the opposite party must be considered as undisputed, and it must be given the most favorable construction for him that it will properly bear, and he must have ’the benefit of all reasonable inferences arising from his testimony, and it is only when his testimony, thus considered, could not legally sustain a verdict in his favor that a court is warranted in directing a verdict against him.”…

<p>Deeds — validity — blank name of grantee.</p> <p>1. A deed delivered with the name of the grantee therein blank, with no proper authorization shown to fill in the name of the grantee, is void in law on its face.</p> <p>Specific performance — offer of performance by plaintiff — ability to convey title.</p> <p>2. In an action for specific performance to enforce a contract for the sale of land by the vendor, where such vendor has tendered, or has offered to perform by the delivery of a deed delivered to him by his grantors with the name of the grantees therein blank, and where the vendor does not show an ability to furnish a title, or a conveyance directly from his grantors to the purchaser, or from himself to the purchaser, which is reasonably free from doubt, equity will not decree specific performance.</p> <p>Specific performance — tender of title —fraud of creditors.</p> <p>3. Where a vendor of a contract to convey real estate seeks to enforce specific performance thereof, and where it appears that the title to such vendor is evidenced by a deed delivered to him with the name of the grantee therein blank, so taken for the purpose of avoiding notoriety of his title, equity will not aid him in specifically enforcing his contract, where he seeks to furnish this deed as a title direct from his grantors to the purchaser, and to avoid thereby possible claims and demands of his judgment creditors.</p> <p>Note. — As to whether a deed blank as to the grantee, in the chain of title, is such a defect as will prevent specific performance of contract for the sale of real estate, see note in 4 A.L.R. 408, on specific performance of land contract where there is a deed blank as to grantee in chain of title.</p> <p>On the question of execution of deed with the name of the grantee in blank, see note in 10 Am. Rep. 267.</p>

“A majority of all the legal votes cast means a majority of all votes whether they voted for the amendments or not.” Const, subd. 2, § 202; State v. Babcock (Neb.) 22 N. W. 372; State v. Anderson, 42 N. W. 421; Tecumseh Nat. Bank v. Saunders (Neb.) 71 N. W. 779. It does not mean a majority of those voting on the question to be submitted, but a majority of all the legal voters of the county. People •ex rel.

Action for damages for debauching the daughter of the plaintiff, District Court, Ward County, Leighton, J. From the judgment entered upon an order dismissing the action when plaintiff rested, the plaintiff appeals.

J. Kneeshcvwj Judge. “Where after breach of a contract, the performance of which was guaranteed the creditor and debtor enter into a new contract on terms different from first contract, by which they agree as to the damages to be paid later, the guarantors of the original contract are discharged.” 107 Ind. 260. ■ ' “Where the consideration of guaranty is sufficient when entered into, the guaranty does not fail by the subsequent loss of value of consideration.” 20 Cyc. 1419,…

From an order of the District Court of Ward County, Leighton J., plaintiff appeals. In passing upon a question of jurisdiction it is. not within the province of the court to consider whether the allegations, of the complaint are true.

Action to recover upon notes executed and paid, for the benefit of the defendant bank. From a judgment rendered for the defendants and interveners dismissing the action, and, from an order denying a new trial, in the District Court of Ward County, Leighton, J., the plaintiffs appeal.

<p>This case is governed by the decision in Kluver v. Middlewest Grain Co. ante, 210. '</p>

<p>This case is governed by the decision in Kluver v. Middlewest Grain Co. ante, 210.</p>

<p>This case is governed by the decision in Kluver v. Middlewest Grain Co. ante, 210.</p>

<p>This case is governed by the decision in Kluver v. Middlewest Grain Co. ante, 210.</p>

<p>’ Prom an order of the District Court of Ward County, Leighton, J., plaintiff appeals.</p>

<p>This case is governed by the decision in Kluver v. Middlewest Grain Co. ante, 210.</p>

<p>Appeal and error — courts — jurisdiction of supreme court on trial de novo; subject-matter of suit.</p> <p>Defendant moves the supreme court to vacate its decision entered in this cause on March 6, 1914. Por reasons stated in the opinion the motion is denied.</p>

C. Crawford, Judge. It requires an affirmative vote of two thirds of all of the voters present and voting to order the removal of the school to any particular site or location. N. D. Comp. Laws 1913, § 1185; Re Davis (Kan.) 61 Pac. 809; (Kan.) 60 Pac. 1057; People ex rel. Davenport v. Rrown, ll 111. 478; State ex rel. Dobbins v. Sutherland, 54 Mo. 391.

L. Nuessle, J. The law will not permit a corporation or an individual to reap the fruits of the fraudulent acts of its or his employees. That is exactly what plaintiff is attempting to do in this action. Altman v. Olson, (Minn.) 26 N. W. 451, and cases cited.

Defendant appeals from the judgment of conviction, and from an order denying a new trial. The title of the act must properly define the subject.

Action to determine adverse claims. From a judgment of the District Court of Nelson County, Cooley, J., in favor of the defendant Arthur 0. Wehe, the plaintiff and the other children of the deceased mother appeal, and demand a trial de novo. “In all species of resulting trusts, intention is an essential element, although that intention is never expressed by any words of direction.” 3 Pom. Eq. Jur. 3d ed. § 1031; 2 Washb.

Original application for a peremptory writ of mandamus to compel the State Auditor to issue the monthly salary warrant of the Tax Oommissioner.

From au order of the District Court of Cass County, Oole, J., defendant appeals. “To authorize an allowance of costs in special proceedings some statutory authorization is necessary.” 15 0. J. 5455. See also 11 Cyc. 53, and cases cited. The state, like any other sovereign, does not pay costs unless otherwise provided by statute. 3 Bl. Com. 400.

Original application to enjoin and prohibit the workmen’s compensation bureau from, in any manner, enforcing the Workmen’s Compensation Act as against the relator, upon grounds of its unconstitutionally- Unless based upon the police power, such legislation would not have, and could not, have been sustained. Orient Ins. Co. v. Dages, 172 U. S. 557, 43 L. ed. ,552, 19 Sup. Ot. Bep. 281; Magoun v. Illinois T. & S. Bank, 170 U. S. 283, 42 L. ed. 1037, 18 Sup. Ct.

From a judgment of the District Court of Ward County, Honorable K. E. Leighion, Judge, the defendant, Person, appeals. The judgment and record was admissible as evidence particularly after the court had allowed evidence to go in of the reputation of the alleged firm. Jones Ev. 2d ed. § 588; 10 E. O. L. § 223; 15 E. C. L. §§ 482, 488; Bow v. Allenstown, 69 Am. Dec. 489; Yaughan v. Phebe, 17 Am. Dec. 770.

, denying judgment non obstante, or a new trial. The court can take judicial notice of the records of the cases, when the cases at bar are founded upon them, when called on to do so. Dan-forth v. Egan (S. D.) 119 N. W. 1021; Butler v. Eaton, 141 U. S. 240; Avocato v. Dell’ Ara (Tex.) 84 S. W. 444; People v. Ackerman, 140 111. App. 301; Bank v. Reed (111.) 122 Am.

Erom a judgment of tbe County Court of Bausom County, Thomas, J., defendant appeals. A justice court has jurisdiction to foreclose a chattel mortgage to exercise such equitable jurisdiction as is granted by law. Const. §§ 103, 111, 112, art. 4. North Dakota Comp. Laws 1913, § 9006, gives a justice court jurisdiction to foreclose liens on personal property. Herkimer v. Keeler (Iowa) 81 N. W. 178.

From a judgment of the District Court of Cass County, Cole, J., defendant Gilbert appeals. Where a deed was under consideration which contained a proper certificate of acknowledgment and notary’s seal, but the certificate was unsigned by the notary, the court held that it did not create a valid encumbrance on the real property. Davis v. Hale (Ark.) Ann. Cas. 1916D, 704.

Defendant appears from an order overruling a demurrer to a complaint. “It is not actionable to charge one with a breach of conventional etiquette.” Townsend, Slander & Libel, 2d ed. 252. The rule is that the natural meaning is to be taken, and if in that view the language will bear a nonactionable meaning equally as well as an actionable one, the courts will adopt the nonactionable construction.

<p>Perries — complaint held to charge maintaining ferry without license — city cannot grant lease operative in another county.</p> <p>The relators, Leach and Eriesham, were arrested and brought before a justice of the peace of Morton county, charged with the operation of a ferry without a license, contrary to the provisions of Comp. Laws 1913, § 9777. To the complaint, they entered a demurrer which was overruled, and they were held to answer, and their bail fixed at $200, which they failed to give and they were committed to the custody of the sheriff. They applied to this court for a writ of habeas corpus, which was granted, and a day certain was set for the hearing upon said writ. After the hearing thereon, the same is quashed for the reason stated in the opinion.</p>

A state has authority to forfeit the franchise of a domestic corporation, cancel the permit of a foreign corporation, or authority to do business in that state or to enjoin any corporation, foreign or domestic, from violating any of the laws of the state or exercising any franchise not conferred upon it by law. Hanger v. Com. 14 L.R.A.(N.S.) 683, and cases cited; Crawford Social Club v. Com. 14 L.R.A. (N.S.) 683; State v. Central Lumber Co. 42 L.R.A. (N.S.) 804; State ex rel.

A. Coffey, Judge. “It was the duty of the court to declare the legal effect of the proof of loss instead of leaving that question to the jury.” Thomas v. Burlington Ins. Co. 47 Mo. App. 169; Irving v. Ex. Eire Ins. Co. 14 N. Y. Supp. 507. “Parol evidence to supplement or validate lost proof is inadmissible.” Cannon v. Phooenix Ins. Co. 110 Ga. 563, 78 Am. St. Bep. 124.

L, Nuessle, Judge. From an order sustaining a demurrer to the complaint plaintiffs appeaL “When a government becomes a partner in any trading company it devests itself, so far as concerns the transactions of that company, of its sovereign character and takes that of a private citizen. Instead of communicating to the company its privileges and prerogatives, it descends to the level with those with whom it associated, and to the business which is to be transacted. . . .

Plaintiff appeals from an order sustaining a demurrer to its petition for a writ of mandamus. No private corporation for profit can be created except by general laws for the organization of all corporations, and any such law shall be subject to future repeal or alteration. Const. § 131, art. 7. A corporation is a creature of the law. Comp. Laws 1913, § 4494.

• Appeal from District Court of Dunn County, Honorable W. C. Crawford, Judge. A definite and unconditional acceptance in the option (offer) is not avoided or rendered uncertain or conditional by matter contained in the acceptance concerning the method of performance, or where payment should be made, etc. Horgan v. Russell, 24 N. D. 490; 33 W. Va. 738, 11 S. E. 220.

<p>Mortgages — statutory provisions as to foreclosure.</p> <p>1. Sections 8075 and 8076, Comp. Laws 1913, provide: “It shall be unlawful for any agent or attorney of any mortgagee, assignee, person or persons, etc., owning or controlling any real estate mortgage to foreclose the same until he shall receive a power of attorney from such mortgagee, as-signee, person or persons, etc.”</p> <p>It is further provided that a power of attorney shall, before the day of-sale, be filed for record in the office of the register of deeds of the county wherein the real estate is located.</p> <p>Mortgages — foreclosure by mortgagee where, mortgagee’s name is signed thereto by agent or attorney.</p> <p>2. Where the notice of foreclosure sale is signed by the mortgagee, or his name is signed thereto by his agent or attorney, without such agent or attorney’s name appearing on such notice, and such notice is published and foreclosure proceedings completed, and the property is bid in in the mortgagee’s name and by his direction, and he accepts, receives, and retains the benefits thereof, such foreclosure proceedings may be considered under these circumstances as the act of the mortgagee, and a foreclosure by him is a valid foreclosure.</p> <p>Mortgages — exclusion of exhibits tending to show knowledge of the mortgagee was error.</p> <p>3. Certain exhibits were excluded from evidence which tended to prove that foreclosure was made with the knowledge, consent, and acquiescence of the mortgagee, and that he received and retained benefits under such foreclosure, while contending the foreclosure was void by reason of failure to comply with the above laws: Held, that the exclusion of such exhibits was reversible error.</p>

<p>Application to the Supreme Court of the State of North Dakota for the issuance by it of an original writ of injunction.</p>

<p>States — bond issues —limit oí indebtedness — constitutional provisions.</p> <p>1. Section 182 of the Constitution as amended construed, and held to authorize the issue of $2,000,000 of bonded indebtedness, unsecured except by the faith and credit of the state of North Dakota, in addition to $412,000 of existing bonded indebtedness.</p> <p>Mandamus — grounds — certification oí bond as within debt limit.</p> <p>2. Thomas Hall, as secretary of state having refused to attest and certify that certain bonds in the sum of $2,000,000, issued pursuant to law by the governor and treasurer of the state of North Dakota, were within the debt limit, a petition was presented to this court on behalf of the state that a writ of mandamus issue out of this court requiring and commanding him to do so. Held, that it is proper that the writ of mandamus should issue in this case.</p> <p>Notk — The question of mandamus to compel issuance of bonds of municipality or other public corporation is discussed in a note in L.R.A.1916C, 414.</p>

<p>Warehousemen. — proof in suit on bond of fraud in surrender of storage tickets for notes immaterial.</p> <p>In an action upon a warehouseman’s bond, where it appeared that the principal was insolvent and his patrons who held storage tickets for the grain stored in the principal’s, elevator had surrendered them in exchange for promissory notes of the principal in order to allow him to continue in business, and the defendant bond company knew of the insolvency and of the settlement and received the storage tickets from the principal, it is held:</p> <p>1. Where a warehouseman’s bond is conditioned for the payment by the warehouseman for all- grain purchased and all sums for which the principal shall become liable to holders of warehouse receipts, allegations of fraud, false representations and mistake in the surrender of storage tickets for promissory notes are nonessential and need not be proved.</p> <p>Warehousemen — Warehouseman necessary party defendant as principal in suit of joint bond; judgment against surety alone on warehouseman’s bond proper.</p> <p>2. Where liability is based upon a joint bond of the warehouseman and a bonding company, the principal is a necessary party defendant, but where the action is brought as one in equity to determine the rights of all parties having an interest in litigating the liability of the bondsman, and where neither plaintiff nor defendants seek any relief against the warehouseman, a judgment may properly be entered against the bondsman.</p> <p>Trial —court may submit issue to jury for advisory verdict.</p> <p>3. Though the action be one triable to the court as a suit in equity, it was not error for the court to deny the defendant’s motion that the case be tried to the court. Under § 7608, Comp. Laws 1913, the trial court, in its discretion, could properly submit to a jury issues of fact in an equity case for an advisory verdict.</p> <p>Evidence — direct testimony as to intention admissible.</p> <p>4. Where the actual intention with which an act is done is material, a party may give direct testimony of his intention.</p> <p>Novation — payment — debtor’s note not payment unless so intended.</p> <p>5. A promissory note of a debtor does not operate as an absolute payment of his obligation unless it was intended to so operate.</p> <p>Trial — refusal to strike out hearsay testimony admitted without objection, proper.</p> <p>6. Where a party allows hearsay testimony to be elicited without objection, he cannot predicate error on the refusal of the trial judge to strike out on motion a selected portion of such testimony.</p>

<p>Schools and school districts — constitutional power of legislature to prescribe courses of study.</p> <p>1. The legislature, pursuant to constitutional authority and excepting as restricted by constitutional limitations, possesses the power to regulate the educational system and public schools of this state and to prescribe the courses of study in such schools.</p> <p>Schools and school districts — validity of the board of administration to act as to courses of study.</p> <p>2. The Board of Administration Act, known as S. B. No. 134, enacted by the legislature in 1919, and referred to and adopted by the people of the state, so far as the same grants the specific power to the board of administration to supervise and control the preparation of the courses of study in the common schools of the state, is not unconstitutional upon the ground that it interferes with and takes from the superintendent of public instruction prerogatives possessed as a constitutional ofiicer.</p> <p>Schools and school districts — power of superintendent of public instruction to prepare courses of study.</p> <p>3. The superintendent of public instruction has no constitutional power or inherent right to prescribe and prepare the courses of study for the common schools of the state. This right, pursuant to direct constitutional provision, has been granted to the legislature. Ex parte Corliss distinguished and held not in point.</p> <p>Note. — Eor authorities discussing the question of power of legislature to prescribe subjects to be taught in public schools, see note in 47 L.E.A. (N.S.) 200.</p> <p>On validity of statute or other regulations as to the use, or teaching, of foreign languages in schools, see note in 7 A.L.E. 1695.</p> <p>Statutes — construction to comply with legislative intent.</p> <p>4. In applying legal rules of statutory construction the object intended to be accomplished should be considered; in considering conflicting statutory provisions the main object to be kept in view is the ascertainment of the legislative intent; this legislative intent may be determined from a general consideration of the whole act, with the established policy of the legislature as disclosed by the general course of legislation.</p> <p>Schools and school districts — construction oí statute granting specific power with general reservation.</p> <p>5. In connection with the application of such rules of statutory construction, where a specific power has been granted, in a statute to a board of administration with which a general reservation therein concerning the duties and powers of the superintendent of public instruction is inconsistent, the specific power so granted will prevail over the general reservation stated.</p> <p>Schools and school districts — power of superintendent of public instruction to prescribe courses of study.</p> <p>6. In 1919, pursuant to Senate Bill No. 134, the legislative assembly enacted the board of administration bill wherein there is specifically granted to such board the power to have charge and supervision of the preparation of courses of study for the several classes of public schools; however, in section nine thereof, it is provided that the powers and duties of the superintendent of public instruction shall be subject to the supervision and control of such board only in so far as such powers and duties were by law subject to the supervision and control of the state board of education and other boards to whose powers such board of administration succeeded. Upon an original application by the superintendent of public instruction to compel such board to refrain from investigating, preparing, and prescribing courses of study for the common schools of the state, the same being a power and duty theretofore possessed by such superintendent, it is held, upon legal construction of the intent and purpose of the act in regard to the preparation and prescription of the course of study for the common schools of the state, that the superintendent of public instruction possesses the power and duty to prepare and prescribe courses of study for the common schools of the state subject to the power of supervision and control by such board of administration pursuant to the specific power therefore granted in the act.</p>

'Appeal from the District Court of Golden Valley County, Honorable ¡W. L. Nuessle, Judge. Defendant’s conduct is not to be judged by wbat a reasonably cautious person might or might not do or consider necessary to do under like circumstances, but what he himself in good faith honestly believed and had reasonable ground to believe was necessary for him to do to protect himself from apprehended death or great bodily injury.

W. Buttz, J., acting at the written request of J. M. Hadley, Judge of the 12th Judicial District. All prior negotiations were merged in the written contract, and no former negotiations are admissible in evidence in a suit upon such contract, Gilbert Mfg. Co. v. Bryan, 39 N. D. 13, 166 N. W. 805; Comp. Laws 1913, § 5889; 23 R. O. L. p. 1395, § 219.

“One who manufactures an article under an order for a particular purpose warrants hy the sale that it is reasonably fit for that purpose.” Comp.

Criminal action for maintaining a common nuisance in District Court, Richland County, Allen> J. Erom a judgment of conviction the defendant has appealed. This court will not review sufficiency of evidence in the absence of a motion for a new trial. 17 O. J. 89; 12 Cyc. 813, 823. Weight of evidence is for jury.

The loss of profits sustained by appellant on account of nondelivery of the goods should have been submitted to the jury. 8 E. O. L. “Damages” §§ 62 et seq.; Taylor Mfg. Co. Hatcher & Co. 3 L.E.A. 587 and note; Cavanaugh Mfg. Co. v. Eosen, 92 N. W. 188; Pelsofsky V. Kaufman, 1 A.L.E. 433. Nothing short of a breach of contract or actual insolvency would excuse a party from fulfilling the contract on its part. Frolich v. Independent Glass Co. 107 N. W. 889; Cavanaugh Mfg.

Original Petition for Mandamus to compel tbe state treasurer to pay a state warrant to a special clerk in tbe office of tbe State Auditor. Tbe words “no” or “any” when used for tbe purpose of classification are all inclusive or exclusive. Cooper v. TJtab, 35 Utab, 570, 136 Am.

From a judgment of tbe District Court of Sargent County, Allen> J., defendants appeal. “A judgment in a former action between tbe same parties is not conclusive evidence in a subsequent action between them on a different cause of action, unless it is made to appear that tbe particular controversy sought to be concluded was necessarily tried and determined.” Herman, Estoppel, §' 275; Carter v. Carter, 14 N. D. 66, 103 N. W. 425; Coyle v. Due, 28 N. D. 400, 149 N. W. 122;…