Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1906-02-15
SUPREME court

w. l.. Bennett. respondent, VS.. S. L.
Glaspeil, appellant.
l. Under Section 1870, Revised
Codes of 1899, one who has subjected
to forfeiture by committing
a breach of contract, may, by making
compensation, be relieved therefrom
when the breach is not grossly negli-
gent, wi1lful or fraudulent.
2. Upon the facts stated in the
opinion, the plaintiff is entitled to be
relieved from the forfeiture upon
which the defendant relies to defeat
his action for specific performance.
g.. The grounds upon which con-
tract may be forfeited must be con-
tanned in the contract; and contract
will not be extended by construction
to include other grounds than those
specified in it. (Following Cougham
VS.. Larson, 10 N. D. 373J
A. Fraud inducing the execution
of contract and by reason of which
consent is not free. renders it void
able and unless the contract has been
affirmed is available as ground for
rescission or as a defense against it's
enforcement.
5. One who with full knowledge Of
the facts which entitle him to rescind
contract or defeat its enforcement
voluntarily takes benefits under it,
thereby affirms it; and he cannot
thereafter assail it's validity.
6. One who is not a party to a con-
tract and disclaims any interest in it
is not a necessary party plaintiff in
an action to enforce it. *
Appeal from the district court of
Foster county; E. T. Burke, judge.
c. B. Craven and E. H. Wright, for
appellant.
S. E. Ellsworth, T. F. McCue and
John Knauf for respondent.
Young, J. Judgment modified and
affirmed. Action to compel specific
performance of defendants written
contract for sale of section of land.
Judgment for plaintiff and defendant
appeals.
c. A. Edwards, respondent, VS.. Char
les Eagles, appellant.
l. On an appeal to this court from
a judgment dismissing an appeal from
a judgment of a justice of the peace,
this court cannot review the judg-
ment dismissing the appeal unless the
motion to dismiss, or the grounds on
which it is based appear on the face
of the record.
Appeal from the district court of
Stutsman county; Edward T. Burke,
judge.
J. A. Coffey, for appellant.
Parks & Olsberg. for respondent.
Opinion by Morgan, c. J. Judg-
ment for plaintiff and defendant ap-
peaIs, affirmed.
John S. piIIsbury, Jr., ard Charles
S. Pillsbury, respondents, VS.. J. 3.
Streeter, Jr, Company, appellant.
l. The findings of the district
court that it is satisfied that the facts
stated in an affidavit on which an
order of publication of summons is
requested are true will not be dis
turbed where it fairly and reasonably
appears that the facts stated in the
affidavit show due diligence.
2. It is only where such recitals in
an order for the publication Of the
summons are merely conclusions that
a finding of due diligence will not be
upheld. =
3. A finding that the residence of
party is in specified place is a
finding of fact and not a conclusion.
4. The facts stated in an affidavit
for publication of the summons con
sidered and held sufficient to sustain
an order of publication; and that the
publication of the summons pursuant
to such order conferred Jurisdiction
on the court to enter Judgment of
foreclosure of real estate mortgage
against a nonresident defendant.
S. The failure to file the affidavit
and order for publication until one
day after the filing of the summons
and complaint does not invalidate a
publication of summons, as the
statutes does not prescribe that the
affidavit or order shall be filed at the
time the complaint is filed. 49,
6. In an action for specific per-
Torrance, the allowance of interest
On the purchase price due on a con-
tract for the sale of real estate in
favor of the vendor was proper, where
the vendee did not pay the same
when a valid deed and abstract was
rendered pursuant to the contract,
although the contract did not provide
for interest, as the vendee had taken