Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1909-10-05
In the Supreme Court

The Langworthy Lumber Company,
Dlaintiff. vs.. Mark Hunt and Hen
rietta c. Hunt, defendants and re-
spondents.
/. Under the mechanics lien law,
(Chapter 70, R. c. 1905.) sub-con-
tractor is entitled to direct lien for
work done or materials furnished the
contractor, irrespective of the state
of the accounts on the contract be-
tween the owner and the contractor,
or the amount due or unpaid upon
their contract.
2. The owner must keep advised
whether MARTIAL used in his building
is paid for or not, and If he pays the
contractor within the time sa sRecifiiHsaa
peril.
2 The abandonment of his con-
tract Inv a contractor after substan-
tial norton of it has been perform
ed does not, of itself, work COM
pletion of the contract.
4. Notice sent by registered letter
tothe owner by sub contractor, m
forming him that he Is furnishing
material for the contract, after lts
abandonment by the contractor anu
before steps are taken to complete
the work by the owner, is seasonably
sent under the requirements that such
notice be given the owner previous
to the completion of the contract. .
Appeal from the district court OF
Wells county, Burke, ].
Action to foreclose mechanics
lien. Defendant had judgment.
Reversed.
John A. Layne, James A. Manley.
| and B. G. Skulason, for appellant;
| Lee Combs, for respondents.
Opinion of the court by Sullivan, j.
! All concur, except Morgan, c. j.,
and Ellsworth, j., not participating.
Andrew Anderson, Plaintiff and re.
spondent, VS.. Minneapolis, St. Paul
& Sault Ste. Marie Railway Com
pany, defendant and appellant.
i. In an action to recover damages
for injuries claimed to have been in
fiicted to plaintiffs horse by defend
ants locomotive or cars, direct evil
dence is not the only class of evidence
which may be used to prove the la
p;lity of defendant. The circum'
Stances surrounding the location and
| finding of the horse, its tracks In the
STOW, the nature of its injuries, may
as Enthusiastically point to and provA
| that the defendants locomotives or
cars inflicted the injury as the direct
| testimony of witnesses might, and II
witnesses, may pc sufficient to sustain
verdict for plaintiff.
2. Plaintiffs horse had been miss
ing two days. On the evening of the
second day it was found lying in the
ditch near the ends of the ties of de.
PENDANTS track under circumstances
which the jury may have found were
unexplainable on any theory except
that one of the defendants trains In
fiicted the injuries. which necessitat
ed killing It, and the verdict may be
sustained on either Of two theories
(a) That the jury considered the
evidence given by the train men as
overcoming the statutory presumption
of negligence on the part of defend
ant as to trains on the second day
| no evidence was submitted to over
come such presumption relating tt
trains which may have passed OveI
\ the defendants road on the first day
that the horse was missing. Obi
| That the jury have found from the
circumstances, that the train passing
on the evening of the second day
4 respecting which evidence was sub
mftted. did inflfct the injuries, not
| withstanding the positive statements
of the trainmen to the contrary, ana
that, therefore, their testimony thai
the horse was not seen in time K
stop the train before reaching 1t
should be disregarded, In which case
| the statutory presumption was np
overcome E#s 4I3 s ~
III This court cannot determine which
| theory the jury adopted. ": Ri
8. Uncertain rulings on the eyi
/ dence and instructions to the jur.