Bismarck weekly tribune. [volume] (Bismarck, Dakota [N.D.]) 1884-1943, 1891-11-27
Another Batch OF Decisions Handed
Down From the Supreme Court
This Week.
In Four the Judgment of the Lower
Court is Affirmed-TwO Re-
Versed.
A Construction Given to the Mocha
MICS Lien Statutes, Hitherto
a Kn0tty Question.
"A Brief Synopsis.

OF the supreme court, at GranO FORKS
six opinions we're filed with the clerk
yesterday. Linton VS.. Minneapolis &
Northern Elevator company came ul
from Cass county and is reversed and re.
manded for a new trial on the ground
that the instructions of the court to the
jury were misleading upderth evidence
he having taken from them one vital is.
sue of fact. Opinion by Corliss, chief
justice; M. A. Hildreth for plaintiff; Lin.
ton and Ball & Saith for the elevator
company.
**x
The St. Paul Fire and Marine Insur.
ance company vs.. Upton was appealed
from Grand Forks county from an order
overruling a demurrer interposed by
the defendants to the com.
plant. The cause of action arose on an
indebtedness for al insurance premium
and the defendant is sought to be
charged with the payment of the same
by virtue OF a mortgage clause attached
to the policy, which provided as fol
lows:
"Loss, if any, payable to Hiram D.
Upton, mortgage, or his assigns, as here
and agreed that this insurance, as to the
interest of the mortgage only therein,
shall neither be invalidated by any act or
neglect of the m%ortgagor or owner of
the property insured, nor by the vacancy
Of the premises, mol by the occupation
of the premises for purposes more haz-
ardous than are permitted by the terms
ofEthe policy; Provided, that III case the
mortgagor or owner neglects or refuses
to pay any premium due under this pol
icy, then, on demand, the mortgagee
shall pay the same; Provided, also, that
the MORTGAGE shall notify this company
Of any change Of ownership or increase
OF hazard which shall come to his knowl.
edge, and shall have permission for
such change of ownership Or increase of
hazard duly endorsed on this policy;
And provided further, that every in
crease of hazard not permitted by the
policy or owner shall be paid for by the
mortgage on reasonable demand, and
after demand made by the company up
on and refusal by the mortgagor or own
er to pay according to the established
schedule of rates."
The mortgage, Upton, refused to pay
one of the premium notes on the ground
that the clause merely prescribed a con
dition on the performance of which he,
Upton, might entitle himself to the ben
eits of the policy. Both the district
and appellate courts think different
that it is an absolute promise to pay.
Judgment affirmed. Opinion by Corliss,
chief justice. Bangs G. Fisk for plaintiff
w. A. Scott for defendant.
TX
Carson, Scott & company VS.. Harvey
Gillitt comes up from Richland county
and was an action brought to charge the
defendant with the liability of some firm
debts on the ground that the defendant
was a partner in the concern. The trial
court directed a verdict for the plaintiff
and this is reversed on the ground that
when a 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 con-
struction for him that it will properly
bear and he must have the benefit of all
reasonable differences arising from his
testimony, and it is ouly where his testi-
mony, thus considered, could not legally
sustain a verdict in his favor that a
court is warranted in directing a verdict
against him. The fact that Il party was
a member of a ~o-partnership cannot be
proven by the unauthorized statements
and representations of n who was a
member of the firm. Nor can the fact
that a party was not a member of a CO.
partnership be proven by his own prior
statements to that effect, aver where
such statements we're made to an agent
of the party seeking to hold him as such
partner. Opinion by Bartholomew, J.
Ball & Smith for plaintiffs; w. E. Pur-
cell for defendant. Judge Morgan of
Devils Lake, presided at the trial in
place of Judge Lauder, who was form
erly of counsel in the case. In the SUI
preme court Judge Templeton took the
place of Judge Wallin, who also had
been of counsel.
~.
Haxton Steam Heater company vs..
Dakota Investment company is perhaps
one of the most important cases, from
the amount involved, that was tried at
the October term. 1t involves a con-
struction of the mechanics lien statutes,
apart of the code that is always causing
trouble and over which much litigation
has arisen. The Hotel Gorden, Grand
Forks, is the subject of the action.
When the building was contemplated
and after actual work on the foundation
had commenced the owner took the
plans and specifications to the defendent
loan corporation and on the strength of
the representations therein contained ef-
fected q loan of $4,000 on the lots. The
! v1oou oolla1 for hao<;no ~ r,sll:u. -,