Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1907-03-14

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injury to certain premises claimed to
be owned by plaintiff. Al the trial
plaintiff sought to show an assignment
by one. M ito him Of a cause of action,
against defendant of a similar nature.
Held, that such proof was properly re-
jected as it in no way tended to sup
port the allegations of the complaint.
2. Plaintiff at the trial asked leave
to amend his complaint by setting up
a cause Of action accruing to M. and
alleging an assignment thereof to him
prior to the encement of the ac-
ton. This anendmen ant would entirely
change the cause of action and hence
was properly refused. Such proposed
amendment was also inconsistent with
the proof already introduced by plain
tiff which showed that such assign
ment was not made until after the
action was commenced, and should for
that reason have been denied.
8. Plaintiff was properly non-suited
for failure to prove the allegations Of
the complaint, it appearing that one
M. and not plaintiff was the owner Of
the property alleged to have been dam
aged by the fire in question.
Appeal from the district court Of
Morton county; w. H. winchester,
judge.
w. H. Stutsman for appellant, Ball,
Watson & Young for respondent.
Il Judgment affirmed. Opinion by
Fisk, J.
Robert Standorf, respondent, VS.. Ben
2jamin F, Shockley and Sarah E. Shock
ley, ellants.
An instrument, in form a chattel
mortgage but evidently intended by
the parties as security on real proper
ty, will be construed to bean equitable
mortgage and will be enforced as such
as between the parties thereto and
those having notice thereof.
It is not necessary to reform such
instrument in order to enforce the
same in a suit in equity. IN.
Appeal from the district court 81
Stutsman county; Hon. b. T. Burke,
Judge. tas5 35
.. A. Coffey, S. B. Ellsworth, for ap-
pellants. jerome Parks for respondent.
Judgment affirmed. Opinion by
Fisk, ].
Vannie a. Hall, appellant, VS.. North
ern Pacific Railway Company, respon.
dent. q sSs45s
/. A complaint in an action to re-
cover damages for negligence must
state the act Of negligence complained
OF and the plaintiff must recover, ii at
all, upon the particular act Of negli-
gence stated IN the complaint.
3. Evidence examined and held to be
sufficient, under the rule heretofore
established BY this court, to require 4
submission to the jury Of tie question
|of defendants negligence as alleged iii
the complaint 5$as
3. u was properly question for the
jury to say under all the evidence,
whether or not plaintiff was guilty 81
negligence contributing to the injury
complained Of.
Appeal from the district court Of
Eddy county; Hon. p. T. Burke, Judge.
8. 7. Glaspell for appellant, Ball,
Watson g Young for respond
Judgment reversed and new trial or
dered. Opinion by Fisk, ].
Charles A. Woodward, respondent,
vs., Emmett s. Nee ollum, appellant.
4. In an action to compel SPECIFIC
performance for the purchase Of real
property the vendee defended upon
the ground. among others, that the
vendor could not transfer to him q
title free from reasonable doubt ii con
formity to r. g. 1899. Sec. 5032. Held,
that such defense was not established.
2. IN one Of the deeds In plaintiffs
chain OF title the grantor signed his
Christian name merely by the initials,
but the body Of the deed set forth his
full Christian as well ais surname. This
was sufficient. q. !.
81 One deed IN the chain Of title de.
scribed the grantees as sChauncey o.,
Frank p and Henry s. Woodworth., :
This was sufficient to vest two-thirds
interest in Chauncey G. Woodworth
and Frank p. Woodwork.
4. A deed from Henry S. Woodwork
was signed Harry S. Woodwork, al
though In the body Of the instrument
the correct name was given. Held, sui.
fcinet, the identity Of the person being
apparent. 81
5. The vendee was bound to point
out the defects complained of Id the
vendors title and By pointing out spe.