Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1902-05-09
WHAT THE COURT DECIDES
Supreme Court Hands Down Three
Decisions in Interesting Cases
This Morning.
Finding Of the Court in Case of M. A.
Hildreth Against the Information
+ al Company.
Court Passes on Liability of Bonds
men in Case of Cass Co., VS..
Exchange Bank. %

Ihe supreme court has handed down
decisions in three cases argued before
it at the recent term. One of them is
in the case of the International So
ciety VS.. M. A. Hildreth, suit which
was brought by the plaintiff to recover
the purchase price of set of books
bought by the defendant under a writ
ten contract. The defendant pleaded
a breach of contract, alleged damages
resulting therefrom and prayed for an
affirmative judgment. The jury
brought in verdict for the plaintiff
for $61 80, which was $33 less than
was due under the contract. Defend
amt moved for a new trial, which was
denied, and an appeal was taken to
the supreme court which holds that
the trial court did not err in refusing
to grant a new trial. The syllabus of
the decision is as follows: ...
One who contracts to- purchase per-
sonal property of a particular kind
and description is under no legal OBJ
legation to receive other or different
property in satisfaction Of his bar
gain, and if the property rendered Is
not the property bargained for he may
reject it. When property which does
not comply with the description Of the
contract of purchase is accepted and
retained, the purchaser by such ac-
ceptance afirms the contract and his
sole remedy Tin cases where remedy
survives the acceptance) is for breach
of the contract.
In an action ito recover a balance
due upon the purchase price Of set
of books sold under a written sub
scription contract, which particularly
described the books agreed to be pur-
chased, and in which the defendant,
who had accepted and retained the
books, sought to recoup damages for
defects. the count instructed the jury
that if the books substantially com
piled with the contract the should re-
turn verdict for the plaintiff for the
full amount of the purchase price and,
Held, Error, for the reason that only
by a complete performance by the de-
fendant could he avoid liability for a
breach, unless there was a waiver.
Held, further, that the erroneous in
struction was without prejudice for
the reason that the jury in fact found
that there was not substantial com
pliance and awarded damages to de-
fendant for the defects alleged.
Tt Is held that the trial court did not
err in refusing to direct verdict for
defendant or in ruling on evidence,
or In denying defendants motion for
new trial on the alleged insufficiency
of the evidence to justify the verdict.
(Syllabus by the court
Appeal from the district court Of
Cass county. Charles A. Pollock, Judge.
M. A. Hildreth, in pro per, for ap-
pellant. ss s
w. E. Resser, (John E. Greene, Of
cOunseD, for respondent.
An interesting case decided is that
of the County of Cass VS.. the Ameri-
can Exchange State Bank of Buffalo,
and Neil McPhedran, w. w Merriell,
p Masterson, G.. "A. Bullamore, Reu-
ben Beard, P. T. Peterson, respondents.
Suit was brought on the bond, and the
fact was set up that one Of the sure
ties had been erased from the bond.
The circumstances in the case and the
findings of the supreme court are set
forth in the following syllabus:
Defendants signed a bond to indem-
Nifty the county of Cass on account of
the designation of the Exchange Bank
Of Buffalo as a depository of county
funds under section 1911 Revised
Codes, which required such bond to be
signed by not less than five freehold
ers and to be approved by the county
commissioners. The bond was cir
clllated for signatures by an agent OF
the principal in the bond. There was
no express agreement as to the per
sons on number Of persons who should
sign the bond or knowledge or agree
ment as to the persons who were to
| sign such bond. After six persons had
signed. the name of the person who
was the fifth signer was erased by the
agent without notice to or consent by
the four persons signing first or by
the sixth signer. At the time Of such
erasure by the agent the bond was NOT
completed. The names OF the sign