Volume 47 — North Dakota Reports

C. Crawford, Judge. “A general verdict and special findings should he reconciled, if possible, and no specific finding should overthrow the general verdict unless entirely inconsistent and irreconcilable thereto.” Drouillard v. Southern P. Co. (Cal.) 172 Pac. 405; Wyldes v. Patterson, 31 N. D. 382, 153 N. W. 631; Cowan v. Mpls.

J. Knees!uiw, Judge. The evidence is insufficient to sustain the verdict. “Proof of fraud must be by clear and convincing evidence and evidenced by facts inconsistent with an honest purpose.” Reitsch v. McCarty (N. D.) 160 N. W. 694. “Proof of fraud must be by clear -and convincing evidence beyond reasonable controversy.” Richards v. Millard (Wis.) 131 N. W. 365. “In an actionable fraud, one of the essential elements to maintain an action is actual or constructive intent to…

J. Graham, Judge. Statement of facts by Bikdzexl, J. This is an action upon a contract to pay money as follows: Agreement. Held: at which all of the defendants were present, and it was resolved to employ counsel for the purpose of bringing or defending a suit founded on the claim in question; also to notify the Ashley State Bank not to deliver to Mitchell or his assigns the subscription notes, “as this bank has repudiated the claim of said F. M. Mitchell and…

'Appeal from judgment of District Court of Sixth Judicial District, Lembhe, J. In computing delay of shipment of cattle, due consideration must be made of the stops for feed, water, and rest. St. Louis, I. M. & S. B. Co. v. Carlisle (Tex. Civ. App.) 18 S. W. 553; Hickey v. Chicago, B. & Q. B. Co. (Mo. App.) 160 S. W. 24; Johnston v. Chicago, B. & Q. B. Co. (Neb.) 91 N. W. 482; Cleve v. Chicago, B. & Q. B. Co. (Neb.) 108 N. W. 982.

When the lease explicitly provides that the landlord may treat it as void on a breach of a condition by the tenant, his election to do so dissolves the relation between him and his tenant. Miller v. Havens, 16 N. W. 865; Sehwoebelv. Fagina, 14 N. D. 375; 24 Cyc. 1347, 1350.

Defendant appeals from the judgment and from an order denying a new trial. The court erred in sustaining plaintiff^ objection to the question put to Samuel Euchs by the defendant as to the reason why he gave the place back. The defendant had a right to ask this question for the purpose of laying a foundation for impeachment: 2 Elliott, § 971; State v. Hazlett, 14 N. D. 490; Taugher v. N. P. P. Co. 21 N. I). 111.

Plaintiff appeals from the judgment and from an order denying a new trial. In submitting a case on special issues, it is necessary that all the issues should be found by the jury, and the court should by its charge explain the law upon any issue, where it is necessary for a thorough understanding of the question by the jury. Merzbacker v. State, 8G S. W, 308; Baxter v. B. Co. 80 N. W. 644; Schrunk v. St. Joseph, 97 N. W. 947.

J. Gmham, J. “Tbe proof or admission of a signature of a party to an instrument is prima facie evidence that the instrument ■ written over it is his act, and this prima facie evidence will stand as binding proof, unless the maker can rebut it by showing evidence that the alteration was made after delivery.” Eiley v. Eiley, 9 N. D. 580, 84 N. W. 347; Wilson v. ITayes, 40 Minn. 531; Modie v. Breiland, 9 S. D. 506, 70 N. AY. 637; Foley, etc., Co. v. Solomon (S. D.) 170 N. AY.…

From a judgment of the District Court of Stark County, LenibJee, J., defendant appeals. In a case of this kind negligence proximately causing the loss must bo shown. And where the killing is. explained, plaintiff’s case gets no support in the statutory presumption. Corbett v. G. N. R. Co. 19 N. D. 456, 125 N. W. 1054; Stoeber v. Soo (N. D.) 168 N. W. 562. Proximate cause was not mentioned, and the jury simply found for the plaintiff on general principles.

E. Leighton, Judge. The court has repeatedly held that the appellant cannot try his lawsuit on one theory in the trial court, and appeal and attempt to try it on another theory in the supreme court. Lynn v. Seby, 29 N. D. 4-20; Harris v. Yan Yranken (N. D.) 155 N. W. 72; Peterson v. Conlan, IS N. D. 205, 119 N. W. 367; Movius v. Propper, 22 N. D. 452, 136 N. W. 942; Petree v. Wyman, 159 N. W. 616.

Action in District Court, Mercer County, Lemblce, J., to recover damages upon a live-stock shipment. The court erred in refusing to dismiss the action as to Northern Pacific Railway Company. McGrath v. Northern P. R. Co. (N. D.) 177 N. W. 383. In computing delay of shipment of cattle, due consideration must be made of the stops for feed, water, and rest. St. Louis, I. M. & S. R. Co. v. Carlisle (Tex. Civ. App.) 78 S. W. 553; Hickey v. Chicago, E. & Q. R. Co. (Mo.

W. BuitZj, J. If tbe deceased acquiesced or participated in a use of intoxicating liquor resulting in defendant’s incapacity to safely operate the car, plaintiff cannot recover. Lynn v. Goodwill, 170 Cal. 112, L.R.A. 1915E, 588, 148 Pac. 927; Powell v. Berry, 145 Ga. 696, L.R.A. 1917A, 306, 89 S. E. 753. A guest may be held negligent who consents to stay in an automobile after dark without light on an unfamiliar road.

Honorable A. T. Cole, Judge. Trial de novo demanded by defendant and appellant. “When it shall appear that there has been actual continued occupation of premises under a claim of title exclusive of any other right, but not founded upon a written instrument, or a judgment or decree, the premises so actually occupied and no other shall be deemed to have been held adversely.” Comp. Laws 1913, §§ 7362, 7368, 7369.

Action in District Court, Ramsey County, Kneeshaw, J., to determine adverse claims concerning tbe land of a lake bed.

Action, in District Court, Stutsman County, Nuessle, J., to recover for. electric current furnished for street lighting, for city water pumps, and for a library and reading room. The defendant has appealed from a judgment of dismissal in favor of the city. “To constitute a tenancy from month to month a special agreement to that effect may be made, or the tenancy may be implied from the manner in which the rent is paid.

J. Graham,, Judge. It follows that the election in question is governed by the laws regulating general elections and this naturally includes the statutory mode of contesting such elections. Nelson v. Gass, 27 N. D. 357; Kadlac v. Pavik, 9 N. D. 278, 83 N. W. 5.

<p>Courts —■ in original proceedings in Supreme Court, state is actual plaintiff.</p> <p>1. In an original proceeding .in the supreme court, the state is the actual plaintiff, and the relator is a mere incident.</p> <p>Removal oí causes — suit by state not removable unless based on Federal laws ox- tx-eaties.</p> <p>2. A suit by the state in one of its own courts cannot he removed to a Federal court, unless it is a suit arising under the Constitution or laws of the United States or treaties made under their authority.</p> <p>Removal of causes — suit does not “arise under Federal Constitution ox-laws,” unless construction of such laws is involved.</p> <p>3. A suit cannot be said to he one arising under the Constitution or laws of the United States or treaties made under their authority until it has in some way been made to appear on the face of the record that some title, right, privilege or immunity, on which the recovery depends will be defeated by one construction thereof or sustained by an opposite construction.</p> <p>Gonx-ts — case involving validity of ox-dor x-aising water rates held within original jurisdiction of Supreme Court.</p> <p>4. A majority of the courts are of the opinion, and it is held, that the instant case (relating to and involving the validity of an order purported to have been made by the board of railroad commissioners granting the Bismarck Water Supply Company a 60 per cent increase in rates, and which order it is asserted by the relators was made contrary to and without axithority of lawt is one within the original jurisdiction of the Supreme Court.</p> <p>Pxxblic service commissions — increase in rates of public utility may oniy be ox*dered after heax-ing.</p> <p>5. Under the Public Utilities Act (Laws 1919, chap. 193), an increase in rates of a public utility can be ordered only after hearing had on that question. In the instant case it is held that a rate increase is void because it was made without notice and hearing.</p>

, Action for assault and battery in District Court, Ward County, Fish, J. Erom an order denying new trial tbe defendants bare appealed. Section 7660, Comp. Laws 1913, snbd. 3, provides tbat a new trial may be granted for “accident or surprise wbicb ordinary prudence could not bave guarded against.” McGinnity v. Case Tbresbing Macb. Oo. 38 N. D. 288.

L. Nuessle, J. Acceptance of the check admitted payment in full. Fuller v. Kemp, 138 N. Y. 23, 33 N. E. 1034; Creighton v. Gregory (Cal.) 75 Pac. 569; Barham v. Bank (Ark.) 27 L.K.A.(N.S.) 439; Keek v. Hotel (Iowa) 56 N. W. 438. Such acceptance is a bar to a subsequent action for the balance, because he cannot accept the benefits of the error and reject the conditions.

<p>Hig-Jiways — appellant from order establishing highway cannot attack same for irregularities in proceedings ¡before commissioners, unless raised in notice of appeal.</p> <p>In tliis case the board of county commissioners of Mercer county made an order establishing a highway. The highway as laid out deviated from the section line, and ran across lands owned by the appellant, Sailer. Sailer took an appeal to the district court from the order of the county commissioners. In his notice of appeal he asserted: (1) That the highway should have been laid out along the section line, and that it was unnecessary to deviate therefrom; and (2) that, in event the highway is’laid out according to the order of the county commissioners, he (appellant) will sustain damages in the sum of $2,000, while the county commissioners allowed only $150 for such damages. No claim was made in the notice of appeal or otherwise in the district court, that the proceedings before the county commissioners were irregular or invalid for jurisdictional or procedural reasons. It is held:</p> <p>1. That appellant cannot be heard to say on this appeal that the order made by the county commissioners was invalid on account of irregularities in the proceedings before the county commissioners.</p> <p>Appeal and error — verdict oil damages conclusive where evidence was not transcribed.</p> <p>2. That upon the record presented on this appeal the jury appears to have passed upon the questions raised by appellant in his notice of appeal, and to have determined such questions against the appellant.</p>

Statement of facts by Bredzell, J. This is an appeal from an order granting a new trial. The order was made in the circumstances appearing in the following statement of facts: In April, 1917, the plaintiff instituted this action as guardian ad litem of his son, who was injured in July, 1912, by being run over by one of the defendant’s trains.

Plaintiff appeals from a judgment holding that a highway has been established. This petition was not signed by six legal voters of West Bay township who own real estate in the vicinity of the road to be established. Under such circumstances the petition was not sufficient to clothe the board with jurisdiction to act.

8. Thomas, J. Since exemption of property from creditor’s process is purely statutory, there must be a strict compliance with the statute in order to obtain tbe benefits of the exemption provisions. Purcell v. Goldstein, 23 N. D. 257. The law denying exemptions is unconstitutional. O’Leary v. Oroghan (S. D.) 173 N. W. S44.

Statement. Bronson, J. This is an action upon a surety bond. Tbe defendant has appealed from a judgment in favor of tbe plaintiff. Tbe defendant terms tbis action a friendly lawsuit. A question of law alone is involved. Tbis question was presented to this court heretofore by certification, but jurisdiction was declined by reason of the manner in which certification was made. See Stutsman County v. Dakota Trust Co. 45 N. D. 451, 178 N. W. 725. Tbe facts are stipulated.

Action to recover. on a surety bond in District Court, Stutsman County, Coffey, J. Defendant has appealed from a judgment in favor of the plaintiff. Moneys after due bear interest at the same rate as before maturity, and the statute rate of interest takes effect after the maturity of the obligation only in the event that there is no interest rate fixed in the contract, to be paid either before or after maturity. Overton v. Bolton (Tcnn.) 24 Am.

From a judgment of the district court of Burleigh County, Nuessle, Special Judge, plaintiff appeals. After a judgment has been rendered in an action and while such judgment remains in full force and effect, a court does not possess the power to dismiss the action.

<p>Refusal of new trial.</p> <p>The case is controlled by the decision in the case of Edmund Dubs v. Northern P. R. Co. ante, 210, 181 N. W. 606.</p>

<p>Schools and school districts — hoard oí education removing teacher for cause must inform her of charges and give her hearing.</p> <p>Where a board of education of a special school district undertakes to dismiss and remove a school teacher under subdivision 8 of § 1251, Compiled Laws of 1913, which provides for removal “for cause,” it is prerequisite to a valid removal that the teacher be informed of the charges and be given a reasonable opportunity for a hearing thereon.</p>

<p>Infants — city held not liable for mothers’ pension allowances payable by county.</p> <p>Section 2508, Comp. Laws 1913, has no application to the payment by a county of allowances for mothers’ pensions (Laws 1915, chap. 185), and a city is not liable for 25 per cent of such allowances paid by the county.</p>

Action in District Court of Cass County, Englert, J., on a contract of guaranty. From a judgment in favor of the plaintiff the defendants have appealed. Plaintiff’s exhibit “A,” should not have been admitted over the objections of the defendants, for the following reasons: That they are not the plaintiff’s original entries of the first permanent records of the transaction. Jones, Ev. 1913 ed. § 569, p. 706; N. D. Comp. Laws 1913, §§ 7900, 7909.

<p>Executors and administrators — relationship held to negative ability of deceased to pay for board and lodging.</p> <p>In an action by plaintiff against her deceased father-in-law’s estate to recover for board and lodging furnished to deceased, it is held:</p> <p>1. In the absence of circumstances showing extraordinary services to the deceased, the presumption of gratuity arising from the relationship of the parties negatives liability upon an implied contract.</p> <p>Witnesses — plaintiff’s husband may testify as to transaction between wife and deceased.</p> <p>2. Where the evidence tends to establish that the plaintiff’s husband is not a co-owner with his wife of a claim against his father’s estate for board and lodging supplied, and where he is not a party to the action, he is a competent witness to a transaction between his wife and the deceased.</p> <p>Note. — The question of implication of agreement to pay for services rendered by relative or member of household is discussed in a note in'll L.R.A.(N.S.) 873.</p> <p>On competency as a witness of the husband or wife of a party to an action involving a decedent’s estate, see note in L.R.A.1917A, 2.</p>

Certiorari proceedings in District Court, Burleigh County, Nuessle, 3. to review the action of the Governor in removing the relator as a commissioner of the Workmen’s Compensation Bureau. The Governor has appealed from the order and from the judgment entered.

Action in District Court, Stark County, Omwford, J., to impress a lien upon lands. From the order made upon a motion to quash, the plaintiff appealed. A court of equity will impress a trust upon the property in favor of the plaintiff, John F. Beyer, because the assets of the defendant, the North American Coal & Mining Company, consist of these lands and Beyer can follow his money into the land, and the property is subject to his lien for the money advanced.

Defendant appeals from an order granting a temporary injunction. Constitutional provisions which have been adopted by a vote of the electors of the state shall be construed to give effect to the intent of the electors who adopted the provision. 12 C. J. 700, § 43. The state Constitution designates a county commissioner a county officer. Const. § 172. By legislative enactment a county commissioner is designated a county officer.. Code, § 3257.

Plaintiff appeals from an order sustaining a demurrer to the complaint. “Possession by a tenant is constructive notice, as to third persons, of the title of the landlord.” 24 Cyc. 924. “The ownership of the realty carries with it, as an incident thereto, the prima facie presumption of the ownership of annually sown crops.

J. Graham, Judge. Qualified privilege extends to all communications made bona fide upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty to a person having a corresponding interest or duty; and the privilege embraces eases where the duty is not a legal one, but where it is of moral or social character of imperfect obligation. Boss v. Ward (S. D.) 85 N. W. 182.

Appeals from orders of the trial court, continuing in force certain temporary restraining orders. Appeal from District Court of Burleigh County, Honorable W. 8. Nuessle, Judge of the Fourth Judicial District. Under § 7214, Comp.

Appeals from orders of tbe District Courts of Cass aud Grand Forks Counties, Cooley, Cole, and Englert, Judges. “Tbe presumption is tbat public officials do as the law and their duty require them” (20 N. D. 398), and the order of September 2, 1920, being regular on its face, “it is presumed tbat the board did everything whiclqthe statute in question required it to do, before it made the order” (20 N. D. 398).

From a judgment of the District Court of Ward County, Leighton, J. defendant appeals. “One who relies upon an express contract, must prove a substantial compliance with the contract before he can recover at all.” Ball v. Dolan (S. D.) 101 N. W. 719. Where defects pervade the whole building’, the contractor cannot recover on the theory that he has substantially complied with the contract. Braseth v. First State Bank, 12 N. D. 486, 98 N. W. 79.

School district officers have and may exercise only such powers as are expressly or impliedly granted by statute.

From a judgment of the District Court of Stark County, LembTce, J., defendants appeal. When plaintiff claims damages because of fire, which he avers was started through the neglect to observe due care and caution, his proofs must establish the charge. Mere speculation or possibility will not do.

<p>Appeal from the District Court of McLean County, Nuessle, J.</p> <p>Defendants appeal from a judgment awarding a peremptory writ of mandamus to compel them as members of the city council of the city of Garrison to pass an ordinance disconnecting' certain territory from that city.</p> <p>“The writ of mandamus may be issued to any inferior tribunal to compel the performance of an act which the law specially enjoins as a duty resulting from office, trust, or station.” Comp. Laws 1913, § 8457; 18 R. O. L. pp. 116-128.</p> <p>“The legislature has the inherent authority to alter or change the boundaries of municipal corporations.” Glaspell v. Jamestown, 11 N. D. 90; Johnson v. Clark, 21 N. D. 526; Const. § 130; Hunter v. Tracy (Minn.) 116 N. W. 924.</p> <p>In proceedings taken under the statute, its provisions must bé substantially followed, and the conditions therein specified must be fully complied with. Oehlef v. Rig Stone City (S. D.) 91 N. W. 450; Johnson v. Clark, supra; 28 Cyc. 202.</p> <p>Writ of mandamus proper remedy. State v. Albright, 11 N. D. 29 Fuller v. University School Lands, 11 N. D. 212.</p>

<p>Appeal from the District Court of Sioux County, Honorable J. M. Hanley, Judge.</p>

A final order settling and allowing an administrator’s final account is conclusive... Comp.

It is proper to ask questions calling for a repetition of answers where the object sought is to test the credibility of a witness.

Action for malicious prosecution in District Court, Bottineau County, Butiz, J. In actions for malicious prosecution and false imprisonment, proof that defendant as prosecuting witness in good faitb fully and fairly stated all of the material facts within his knowledge to the prosecuting officer and acted on his advice establishes a case of probable cause.

Lenibke, J. Clifford A. McCarty was convicted of grand larceny and appeals. If defendant did so obtain the property, without fraud or deceit, he is not, under the law, guilty of larceny, no matter what intent he may have formed thereafter. This is well settled by the authorities. 2 Sackott, Instructions, §§ 30-32; Starch v. State, 63 Ind. 283, 29 Am. Ecp. 762; State v. Meldrum, 70 Pac. 526.

<p>Replevin — ownership and right of possession of hay held for jury.</p> <p>In an action in claim and delivery for certain hay involving the question of the title and the right of possession thereof, it is held, for reasons stated in the opinion, that the issue of ownership and right of possession were questions of fact for, and properly submitted to, the jury.</p>

J. Graham, J. Neither Games nor any other party to the contract, considered or intended there should be any partnership-. The business was conducted by Dunahey as an individual. It had none of the earmarks of a partnership. Grigsby v. Dey (S. D.) 70 N. W. 884. The participation of one in the profits of the business without having an interest in or right to control the business does not make him a partner.

Action in District Court, Eddy County, Cole, -1. Defendant bas appealed from an order overruling a demurrer. The law in force at the time a mortgage is executed, with all the conditions and limitations it imposes, is the law which determines the .force and effect of a mortgage. Yon Hoffman v. Quincy, 4 Wall. 535, 18 L. ed. 403; Bronson v. Kinzie, 1 How. 311, 11 L. ed. 143; Brine v. Hartford F. Ins.

■ Appeal from the District Court of Williams County, Honorable K. E. Leighton, Judge. If the original complaint was sufficient, it was reversible error to sustain the demurrer. If the proposed amended complaint was sufficient it was reversible error not to allow the amendment of the original complaint. Miller v. Nat. Elev. Co. 32 N. D. 357.

Erom au order refusing to vacate garnishment proceedings in Sargent Oounty, McKenna,, J., the defendant has appealed. “The industries under consideration in the present ease are all pub-lie industries belonging to tbe state of North Dakota.