Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1902-06-11

H. l.S- 4 u. a. N1LL1fAN1oS c-EEl
Chairman.
i. CASES ARE DECIDED.
SUPREME COURT HANDS DOWN
DECISIONS IN TWO CASES APP
PEALED FROM DISTRICT COURT.
The supreme court has reversed the
lower court and ordered a new trial in
the case of the John c. White Manufac-
turing Co. VS.. J. J.. Reilly and D. P.
Jameson. The action is one in claim
and delivery, brought to secure. posses
sion of certain drug store fixtures.
The syllabus of the opinion is as fol-
lows:
1. On a contract for the sale of per-
sonal property, which provides that
payment shall be made in cash when
the goods are delivered,' the provision
for cash payment on delivery may be
waived by the acts or conduct of the
seller. g" st, .~
2. An unconditional delivery of
property to a carrier under such a cons
tract is a delivery thereof to the pur-
chaser. ~,
). Whether there has been a waiver
of the conditions of a contract by an
apparent unconditional delivery is a
question of fact to be determined from
such delivery and all other facts in the
case. including declarations and con-
v~ersations of the parties tending to
show what the intent of the party de-
l~ivering was.
4. On the trial the following ques-
ton was asked the plaintiff and am
swered under objection: did you
ever, Mr.. White, intend to- part with
the goods except as they were paid for
with CASH." Held, prejudicial error.
Appeal from the district court of
Cavalier county, o. E. Sauter, Judge.
Charles G.. Laybourn for respondent.
Cleary & Mclean and John H.
frame for appellants.
Constituting section 4732, Revised
Codes. This is a claim and delivery
. action to recover the possession of a
! stallion owned by the plaintiff and de-
livered by him to one Thomas Creath
upon conditions embodied in a contem-
poraneous writing, signed by plaintiff
and Thomas Creath, which writing was
never filed as required by said statute.
I The writing embraced a contract of
l conditional sale, and by it's terms gave
t Creath only the naked possession OF
3 the stallion until the stipulated condi-
lions were performed and the title was
expressly reserved and continued in
the plaintiff until performance. Creath
l never fulfilled the conditions Of the
contract, but abandoned the stallion
and left the country. The defendant
g seized the animal as the property on
Creath, under an attachment issued
e by a justice of the peace, and when
this action commenced defendant held
g the stallion under said attachment
At the trial plaintiff put the written
contract in evidence together with ora,
testimony tending to show that Creatl
y had not complied with the terms of the
writing and had not paid for the stal'
e lion. Defendant offered no testimony
e On defendants motion the trial couar
: directed a verdict for the defendant
upon the ground that the plaintiff hat
e not made out a prima facie case, mas
l. much as aforementioned contract hat
not been filed under said statute
d Held, that the order directing suc1
verdict was error.
Held, further, for reasons stated il
the opinion, that the defendant neithe
alleged. nor proved a state Of fact
bringing the defendant within the ben
n e1ts Of said statute.
Plaintiff appeals from a Judgment
district court of Stutsman county, w
H. Winchester, judge.
e S. e. Ellsworth, attorney for appel
lie liant.
\ Jerome Parks, attorney for respond
Ant.