Bismarck weekly tribune. [volume] (Bismarck, Dakota [N.D.]) 1884-1943, 1895-05-17
TUESDAY,, MAY IA,

-.-.#. "##| H.EE-
In the supreme court this morning
two opinions were filed. In the case of
Ina N. George, appellant vs.. M. N. Trip
lett, the syllabus of the decision is as
follows:
"When a party calling a witness is
surprised by his testimony which not
only fails to prove but actually dis
proves his case he has a right to ask the
witness whether he has not made a
statement to the plaintiff conflicting
with his testimony and which if true
would tend to prove the plaintiffs case,
whether, if the witness denies max
ing such statement, the plaintiff may be
allowed to prove the contrary, in the dis
erection of the court, for the purpose of
impeachment, not decided"
Appeal from the district court of
Rlchland county, Hon. W. S. Lauder,
judge.
L. B. Everdell and Crum s. Hanson
for appellant. w. e. Purcell and Nc
Cumber & Bogart for respondent.
Opinion by Corliss, J.. Reversed and
new trial ordered.
In the case of Alexander Anderson,
appellant VS.. First National bank of
Grand Forks, respondent which grew
out OF the sale of certain real estate in
rand Forks, the appellant claiming
that the respondent while acting as agent
sold the property to itself, the sylla-
bus is as follows:
"The trial court has power to allow
the amendment of the complaint on the
trial to conform to the proof by the in
sertion of an allegation that defendant
sold to itself property of the plaintiff
where the original complaint set forth a
cause Of action for the balance of the
proceeds in the hands of the defendant
on the theory that he had sold such
property to a third person as agent for
plaintiff, plaintiff not asking to have the
complaint so amended as to entitle him
to recover as for conversion, but only on
the theory of waving the tort and suing
on implied promise to pay the value Of
the property SO converted.
plaintiff having been so misled by
defendants conduct as to believe that
defendant had in fact sold to a third per-
son and having therefore framed his
complaint on that theory, and defend
AIMS cashier having without objection
from defendants counsel testified on the
trial that defendant sold such property
to itself and such fact being undisputed,
held, it was an abuse of discretion for
the trial court to refuse to refuse to al
low plaintiff to amend his complaint to
conform to the proof.
San agent authorized to sell property
Of his principal cannot sell the same to
himsef. The rule is the same when he is
authorized to sell at a specific price and
assumes to sell to himself at that price
Such a sale followed by a claim of owner.
ship hereunder constitutes a Conversion
of the property.
"The wne may waive the tort and
treat the conversion as a purchase, and
recover in assumpsit the value of the
property at the time of such conversion
with interest from the date thereof.
lit is bad practice to unite in the
same instrument notice of intention to
move and not of motion for a new trial"
Appeal from the district court of
Grand Forks county, Hon. Charles F.
Templeton, judge.
Phelps & Phelps for respondent. Burke
Corbet for respondent.
Opinion by Corliss, j. Reversed and
a new trial ordered.
The case Of the state Of North Dakota
ex rel Van Horn VS.. Frank Briggs, state
auditor was argued and submitted.
This action was brought to compel by
mandamus Auditor Briggs to audit and
allow certain per diem Of trustees Of the
state penitentiary rejected by Auditor