Bismarck weekly tribune. [volume] (Bismarck, Dakota [N.D.]) 1884-1943, 1890-05-16

On the opening day of the May term
{tof the supreme court at Bismarck, it be-
ing Tuesday the 9Th inst, the full bench
being present eight opinions of cases
argued at the January term we're handed
down. The following is the syllibus of
each as furnished by R. Fl. Hoskins,
chief clerk:
VIM. Short, Plaintiff and Respondent. vs.. Nor
: thern Pacific Elevator. Company. Defendant
Fl Order Denying Defendant's Motion for a New
Trial, District Court of LaMoure County.
Where plaintiff had grounds for sus-
picion that one NJ. had stolen a Quantity
of plaintiffs grain from his granary and
had subsequently delivered such grain to
the defendant at its elevator at Lahore,
and within twenty-four hours after NJ. had
actually delivered certain grain at said ele-
Yator ami received tickets therefor plain
tiff visited the elevator at LaMOure, and
there saw one l.. engaged in buying grain
for defendant and issuing tickets for the
same and in receiving such grain into the
defendants elevator. Under these circum-
stances, and in respOnce to inquiries made
OF l.. by plaintiff, l.. stated to plaintiff in
substance that, several hours prior to the
time Ofsuch conversation, l.. had purchased
OF NJ. and given him defendants elevator
tickets therefor, a quantity OF grain cores
ponding in kind and amount to that sup
posed to have been stolen from plaintiff.
Held: In an action against the defend
ant for the value of the grain that said
statements and admissions made by L. as
TO receiving the grain, and issuing tickets
therefor, were inadmissable because not a
part OF the res gestae II their admission
in PVl0AnnA WAS error. The Stafpmantc Of
l.. were made concerning a transaction
which was within the scope of LIS author
ity a. agent, but such transaction was
closed and entirely completed some hours
prior to the time at which L.. narrated the
facts to the plaintiff. The declarations and
admissions of l.. were not made while the
wheat was being received into the elevator;
nor were the declarations made spOntan-
eously and so connected with the principal
transaction as tOspring from and form a part
thereof. Such declarations by the agent
were not a necessary part of the duty en-
trusted to him and cannot therefore bind
tthe% principal in the absence of authority
from the principal to make such declara-
tons. Evidence examined and found not
to show that L.. had authority from defend
ant to make the declarations and admis-
sions which were admitted into evidence.
Opinion by Wallin, j.
Bartholomew, j. having been of counsel
did not sit; Judge Templeton, of the first
judicial district: sitting by request.
Eben D. Jordan, James c. Jordan and Eben D.
Jordan, Jr., scO-partners as Jordan, Marsh d
Co., PLAINTIFF and respondents, vs.. Simon Fl
Frank, defendant and appellant. Appeal from
the district court OF. Cass county.
l. In an action aided by attachment all
the facts necessary to give the court juriS-
diction must aflirmatively appear Of record,
otherwise the proceedings are void.
z IL. Attachment proceedings void for a
lack of a sufficient affidavit for attachment
cannot, under the statute of this state, be
cured by the subsequent filing of an ad-
diti0nal and sufficient affidavit. Such addi-
tional affidavit, if allowable,can only serve
as a basis for subsequent jurisdiction and
cannot make legal that which was before
void.
Is Ill. Attachment proceedings are inciden-
tai to the main case and form no part of
der judgment on the pleadings, while a
material issue raised by the complaint and
answer remains untried.
Opinion by Bartholomew, j.
Wallin. j., having been of counsel did
not sit; Templeton, district judge, sitting
by request.
Edwin Morris, Plaintiff and Appellant, vs.. Sal
Defendants. Elizabeth Mcknight, Defendant
= and respondent. Appeal from the District
Court of Cass County.
Mortgage, in a lost and for that reason
\ nnrecorded mortgage, having executed and
such mortgage had been paid and satisfied
cannot reinstate the prior lien of his mort
gage as against an innocent assignee for
value Of a second mortgage who buys re-
lying upon the satisfaction as an eXtln-
guishment OF the prior mortgage. although
TIM NJ - rnnC IN th> ,1~-l
4 knew Of the unrecorded mortgage and
/ took their lien expressly subject to it.
The fact that about the time of the exc
cutiOn. and recording of the satisfaction
another mortgage for about the same
amount as the unrecOrded mortgage given
sumed the unrecOrded mortgage, but given
subsequently to the second mortgage, was
executed and recorded, is not sufficient
to put the purchaser Of the second mort
gage upon inquiry as to whether the unre-
corded mortgage had in fact been paid and
satisfied as against the recorded satisfac-
stlon given by the first mortgage, although
such substituted mortgage recites that the
property is free from all membranes.
Opinion by Corliss, c.. j.
Wallin. J., having been of counsel did
b not Sit; Judge Templeton of the First dis
Sgtrict, sitting by request.
HFIEt#&ItED-3t l|L rs ..-
The Northwestern Fuel Company, Plaintiffs and
Appellants, vs.. Henry A. Bruins, Defendant
and Respondent. Appeal from the district
ssg$court of Cass county. ~ ST.
defendant having written plaintiff ask
ing IL it could furnish defendant coal at
the same prices aud terms as previous sea-
@SsOn.5lf he used about one-half to two-thirds
ss0f amount used the previous season, and
81 plaintiff having by letter in answer to this
enquiry offered to sell al the price of $3.50
per ton,and defendant having thereafter by
& letter accepted the offer.
Held: That parol evidence to show that
n intermediate PLAINTIFF offer and defend
ants acceptance, the parties liked the
amount of coal to be delivered at the full
amount used by defendant the season be.
fore instead of One-half to t%wo-thirds, as
stated in defendants letter. was inadmiss-
5ablebecause 1t varied the terms of THE writ
ten contract. SS
Opinion by Corliss, CT.