Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1905-12-20
SUPREME COURT DECISIONS.

SUPREME COURT DECISIONS.
Annie Kinney, respondent, vs.. Broth
erhood Of American Yeomen, appel
liant.
1. It is proper and commendRble
practice to include In a single notice
am appeal from Judgment and an
an appeal from an order made after
Judgment, denying motion for judg-
ment Notwithstanding the verdict OF
for a new trial. Certain language ID
Prond1insRd VS.. Garbutt, 8 N. D. 2s9,
and in State VS.. Gang, 10 N. b. 331,
disapproved.
2. Where by failing to object to
the admission Of evidence Of matters
in avoidance Of defense, the defend.
ant has tacitly consented to the trial
OF an, issue. which could. and should
properly, have been Irrigated without
q reply, he cannot urge as grounds
for a directed verdict that the plain.
tin, by. voluntarily interpreting a re
ply which only denied new matter
pleaded in the answer, was thereby
preclnded from showing matter in
avoidance Of the defense.
8. The sufficiency Of the evidence
to support the finding Of the jury on
any question in dispute will not be
reviewed when the printed abstract
does not contain all the evidence re-
lating to thai question.
E 49, Il the sum Of money paid to
plaintiff by the defendant to satisfy
an alleged accord was not. the amount
agreed upon In the accord, the retenr
ton Of the money, even though there
was no fraud ON defendants part,
would not estop the plaintiff to deny
that the accord had been executed
5. II the. sum paid by defendant
was not Sufficient to satisfy the ac.
cord the plaintiff might disregard the
accord and either retain the payment
and sue for he amount .of her original
claim. or treat the sum received as a
partial payment Of her original claim
and sue for, the balance. +.
g.. Where the record shows that
the plaintiff relied upon two proposi.
tons Of fact, either OF which, II true,
would defeat the defense pleaded, and
the record does not show how the
questions were submitted to the jury,
or which of the propositions the jury
found to be TRUE. we cannot disturb
the verdict unless it clearly appears
that neiher proposition was true.
z. Neither the instructions to the
jury, requests for Instructions nor ex.
ceptions to the gdvin or refusal to give
instructions in civil action are
parts of the Judgment roll unless
made so 10y Including them in the
statement OF the case.
z 8. A question to a witness called
In rebuttal, which does not call the
witness attention to some particular
statement or fact and demand a de-
ndal or explanation thereof, is i'm
proper In form.
9. In an action by the beneficiary
upon a life insurance policy which
provides that no recovery can be had
on the policy unless the insured at
the time Of his death was a member
in good standing Of the defendant fra
ternaa order, and had paid all dues
and assessments, such loss OF MEM
bership or default in payments are
lenses which maTut be pleaded and
proved by the defendant. g.
10. Allegations in the complaint as
sorting generally that the insured was
a member in good standing and had
paid all dues and assessments are
mere suwlusage, and do not relieve
the defendant OF the necessity OF
pleading. and he burden Of proving a
default In those respects
II. It was not error to- decline to
admit testimony that the insured had
failed to pay an assessment when
there was not proof or offer to prove
that an assessment had in fact been
levied which the insured was bound
to pay.
IL. Although certain testimony
was admitted on crossexamination
which, standing alone. appears to
come within the rule agadnst hearsay
testimony, yet the admission OF the
Testimony cannot be held reversible
error when the previous testimony 81
the witness does not appear, and, 90
far as the record ddscloses, the testi-
mony could not prejudice the DEFEND
ant. even II objectionable as hearsay.