Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1908-04-24

so-called statement of case not only
violated the provisions of the above
section, but they failed to comply
with rule Z, of the supreme court
which requires the evidence to be set
forth in narrative form. For these
reasons statement of case must be re-
garded on appeal.
(Syllabus by the court.)
Appeal from the district court of
Ward county: Hon. E. B. Goss, J.
LeSueur & Bradford, for appellant.
Joseph Denoyer and Noyes & Hut
ton, for respondent.
Judgment affirmed.
Opinion by Fisk, j.
All concur.
John Buchanan, ST., respondent, ".
The Minneapolis Threshing Mach
inc Company, appellant.
The mere fact that a notice of the
failure of a machine to work as war
ranted is not given in the manner
prescribed by the written warranty
or is not given at all, is of no avail
as a defense where the company to
whom such notice is to be given acts
under some notice given under the
warranty and sends an expert to ex-
anime the machine, and does every
thing that it could have done, had
such notice been properly sent.
An objection that certain evidence
called for by question is incomp-
etent, irrelevant and immetarial, is
too general, ordinarily, and is for
that reason no objection at all, as
far as the Directing party is con-
cerned.
The trial court gave us part of an
instruction, the following language:
''The contract will be sent to the
jury box with you, gentlemen, and
you can wrestle with it at your pleas
ure. / cannot read it in the present
light" Held: Not an unfavorable
comment on the contract as having
been printed in small type.
The charge Of the trial court
should be considered in it's entirety
and error cannot be predicted on
parts thereof, where the charge, as
a whole is not subject to the object
ion made on part thereof.
An objection to evidence based on
the lack of pleading to support it,
cannot be made for the first time in
the supreme court.
(Sylabus by the court.)
Appeal from the dictrict court of
Foster county: Hon. E. T. Burke,
judge.
T Turner & Wright, for appellant.
T. F. McCue and S. e. Ellsworth
for respondent.
Judgment affirmed.
f Opinion by Morgan, G. J.
All concur.
j. Il. Owens Co., respondent, v. Thos.
Doughty, appellant.
Action on a promissory note. The
answer admits the execut ton and de-
livery of the note and amount due
thereof, but alleges two counter
claims based upon a contract under
which plaintiff agreed to reimburse
defendant for the expenses incurred
by the latter in affecting sales of GER
tain tanning mills heretofore sold
by plaintiff to defendant and for the
purchase price of which the note in
suit was given. The first counter.
claim is for expenses heretofore in
Cured by defendant in making sales
i of II of such mills. The second asks
for the sum of $500 90 as the probable
! or estimated expense of effectins
sales of % mills which are still un
/ sold and in defendants possession
| Plaintiff admitted the first counter
claim. The other one was stricken
| from the answer on plaintiffs mo-
| tion and judgment ordered on thu
pleadings in plaintiffs favor. Held;
Not error, as no cause of action fol
| the recovery of the expense of max
ing sales In the future of the mill.
on hand had accrued under the terms
Of the contract.
(Syllabus by the COURT