Bismarck weekly tribune. [volume] (Bismarck, Dakota [N.D.]) 1884-1943, 1893-07-28
The Supreme Court Files a Decision
In the Case of Braithwaite We.
1ntervenors.
Sheriff Barnes Brings Up Five
Prisoners From Fargo For
Warden Boucher's Hotel.
Various Items of Local News Gath
cred Here and There For
Tribune Readers.
The Braithwaite Case Again.

Nhsc again.
The opinion Of the supreme court in
the case of B%raithwaite vs.. Rea, Robin
son, Kay, ct al, %intervenors and appel
lants, has been filed, which but adds
another chapter to a long and hard
fought legal battle. This is an appeal
from the district court of Burleigh
county, and the lower court is reversed.
The syllabus is as follows:
Plaintiff and intervenors having re.
covered judgment againt the defendants,
the intervenors claimed the money under
a written contract with plaintiff. Such
contract provided that the %intervenors
and the plaintiff %(defendent in inter-
vention) should contribute certain sum
to a common fund, with which to pur-
chase the steamboat Eclipse; that the
title should be taken in the names of
plaintiff and another; that they should
operate the boat and pay over the earn
ings to the intervenors until their ad.
vances and certain claims of theirs
against the boat, were paid; after that
the ~intervenors' interest in the contract
was to cease and the boat to belong alb
~solutely to plaintiff and the other pur-
chaser. The boat was purchased by
plaintiff and the other person, under
the agreement and it is for earnings while
plaintiff was operating her under the
agreement that the plaintiff recovered
judgment. The intervenors claimed the
money due under this judgment as
money to which they were entitled
under the agreement. Held, that the
plaintiff (defendent in intervention) can
not set up, as a co~unterclaim, a course
of action for the conversion of his inter-
est in the steamboat referred to in such
contract; that the course of action for
the tort did not arise out of the contract
or transaction set forth in the interven-
ton complaint, as the foundation of the
intervenors' claim and is not connected
with the subject of the action.
Nor could the cause of action for tort
be sustained as an equitable set off indie
pendent of statute, there being no aver
ment that the %intervenors are insolvent.
The mere fact that they are not resi-
dents of the state does not warrant the
application Of the doctrine of equitable
set off.
Even If the ~intervenors were insolvent
equity would not allow the set off of a
cause of action for an Independent tort
against a clam arising on contract.
One whose property has been con-
verified may waive the tort and sue for
the benefits received by the wrong.doer,
although he has not disposed of the
property converted; but the intent to
waive the tort must appear on the face
of the pleading.
One who intervenes in an action sub
jects himself as fully to the jurisdiction
of the court as if he had brought an
original action against the person against
whom his complaint in intervention is
filed, and the defendant in intervention
may recover an affirmative judgment
against the intervenor either because of
matters growing out of the intervenor's
claim or by establishing a counter
claim the same as a defendant in an
ordinary action.
Appeal from district court, Burleigh
county, Hon. w. H. Winchester, Judge.
Louis Hanitch, F. H. Register and E. W.
Camp, for appellants, Geo. W. Newton,
for respondent.
After a sleepless night, use :Angostura
Bitters to tone up your system. Buy
only the genuine, manufactured by DR..
Siegert Il Son. At all druggists.
August Weather.