Bismarck weekly tribune. [volume] (Bismarck, Dakota [N.D.]) 1884-1943, 1895-05-24

0. Fadden, ct al, defendant and respond.
emit, appealed from Grand Forks county,
syllabus is as follows:
The reservation in general terms OF
exempt property by assignor in assign.
ment for the benefit of creditors does
not render an assignment void, although
the assignment does not specify such
exempt property. Such assignment CON
structed and held not to require cred
ltors to execute releases az conditioned
for securing benefits Hereunder. (See
opinion for the particular facts of the as.
segment, which were claimed to render
it void as requiring such releases).
From Wednesdays daily.l
Tne supreme court today filed it's de-
cision in the case Of W. E. Purcell, plain
tn and respondent, We. st. Paul Fire and
Marine Insurance Co., defendant and
appellant.
This was an action brought by w. E.
Purcell as assignee of one Horatio Tay-
lor, who had had q loss by fire covered
by an insurance policy issued by the St.
Pnaul Fire and Marine Insurance Co.
The verdict was in favor of the plaintiff,
from which the defendant appealed.
After the loss by fire, the insured and
defendant had adjusted the loss and
agreed upon the amount to be paid for
the loss at the sum Of 500. Thereafter
tie claim was assigned to James Purdon
and by him assigned to the plaintiff, who
sues and sets up two causes of action,
the y being on the policy and the other
the promise of the defendant to pay the
amount Of the adjustment. The defend
ant failed to require plaintiff to
elect under which cause of action
he would proceed and now asks
the court to grant q new trial on the
ground that the complaint was faulty in
alleging two causes of action. The court
holds that the pleadings could only be
attacked by motion to compel lthe plain
tiff to elect ou which cause of action he
would proceed. Previous to the insti-
tuition of suit and after assignment of
the claim to Purdon, garnishee proceed
ings had been commenced in Minnesota
seeking to collect for the loss as q cred
itor OF the original holder of the policy.
The court holds that such garnishee
could not be good against such indebt-
edness after assignment Of the same.
The judgment Of the court below is
affirmed and the plaintiff thus has judy
ment. The cas- deals largely with the
t~echnicalities of pleading and the above
is given as the substance only of the de-
cision, which is by Judge Corliss.
The action was appealed from Rich
land county, Judge Lauder presiding.
Purcell & Woolf and l.. B. Everdall
for respondent. John E.. Green for a
pellant.
The case of J. N. Brundage VS.. R. B.
Mellon was also decided.
This case arose out of a sale of horses
by Mellon Bros. to Brundage, which
Brundage claims were diseased. On the
trial in the court below the plaintiff
offered to show that one of the Melons.
since deceased and who wal then a men,
Der of the partnership, made certain
warranty as to the soundness of the
horses. The court ruled such testimony
inadmlssiole, and on that ruling appel
liant prosecutes the appeal. The sylla-
bus of the decision, which reverses the
trial court and remands the case for a
new trial, is as follows: 9
Every partner is liable for the fraudu-
lent representations of every other part
ner made in the sale Of partnership
property, as a means of effecting such
sale.
Where the trial court, by it's ruling in
excluding evidence, plainly asserts that
the plaintiff cannot, as a matter of law,
recover on the theory on which he Is
seeking to sustain his action, he is not
bound, in the absence of notice that he
must so do, to offer proof of the other
allegations of his complaint. The other
facts for the purpose of reviewing the
ruling of the trial court are, under such
circumstances, to be deemed capable of
proof, and it is to be assumed that plain
tiff could have proved them, had be not
been met with such adverse ruling, rem
dering further evidence meaningless and
without force in the case.
Appealed from Burlelgh county. w.
Il. Winchester, judge.
Newton & Patterson, for appellant.
r. w. Camp, for respondents.
Another decision was in the case of
Kvello vs.. Taylor.
This was a case appealed from the
district court of Ransom county, w. S.
Lauder, Judge. The question was as to
who was the owner Of certain wheat
levied upon by the sheriff, Taylor, as the
property of Nels. 0. Anderson, which
wheat was claimed by plaintiff. Kvello
the appellant, claimed that certain con.
tracts existing between plaintiff and said
Anderson we're in fraud of defendants
rights. The judgment Of the court be.
low was affirmed. The syllabus is az
follows:
Fraud upon creditors cannot be pred1-