Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1909-03-14

John .Schanase, Respondent, VS.
Sam Goetz, Appellant.
l. It is competent to show on the
cross examination of witness, fol
the purpose of discrediting him OF
lessening the weight Of his testi
mony, that he has been arrested and
convicted of crime.
2. A subject entered into in direct
examination may be further inquired
into and exhausted on cross exam
ination.
3. A party who, on cross examina'
ton, inquiries If the witness has not
been engaged in an unlawful occupa'
ton, on being answered in the mega
tive, is precluded from showing by
other witnesses that the witness sc
testifying testified falsely, when the
purpose of the questions relating to
his occupation was to impeach OF
discredit him as a witness.
4. In this case the evidence as
to the nature of the assault and the
injuries inflicted by the appellant
upon the respondent was conflicting.
Impeaching testim ony tending to
show that one Of the appellants wit
nesses testified falsely as to his hay
ing been engaged in an unlawful oc-
cupation, and was admitted over OBJ
lection.
Held: That under the circum-
stances; this court cannot assume
that the admission Of such impeach-
ing testimony was without prejudice
to appellant, as the effect thereof
may have been a controlling influ-
ence with the jury in determining
the extent of the injury or the dam
ages inflicted.
(Syllabus by the court.)
Action for damages Of a personal
assault. Appeal from an order Of
the district court Of McHenry county
denying a new trial. Hon. E. B.
Goss, J.
Reversed.
Christensen & Weber for appell-
ants.
John o. Hanchett for respondent.
Opinion by Spaulding, J. All con-
cur.
Poirier Mfg. Co., Respondent, vs..
A. r, Kits, Appellant.
1. A conditional sale is a sale in
which the transfer of the title in the
hing sold to the purchaser or his re-
tention of it, is made to depend upon
the performance Of some condition.
2. Contract examined and held to
be a conditional sale contract, and
not an agency contract.
3. The vendor, on breach of the
terms of the conditional sale con-
tract by the vendee, may elect to re-
cover possession of the property or
waive his title and sue for the value
or selling price, but he can not do
both.
4. The supreme court will not con-
slider, as ground for a reversal Of
the judgment of the trial court and
It's order denying a new trial, a point
not raised in the trial court.
5. An offer to rescind a contract of
sale on the ground of a breach of
coupled with conditions
as to payment Of freight and storage,
and to return only a portion of the
property purchased, Is not such an
offer to rescind as can
be sustained to defeat an action for
The purchase price,
6. The facts disclosed in the rec
ord in this case show an affirmance
Of the contract by the appellant.
Appeal from district court of Cass
county. Hon. G. A. Pollock, J.
Action by Poirier Mfg. Co. against
A. r. Kits Judgment for plaintiff
and defendant appeals.
Affirmed
Townley & Frankberg and Sam
baugh & Fowler for appellant.
Turner e Wright for respondent.
Opinion by Spaulding, J. All con-
cur.
Elizabeth Comford, Respondent,
VS.. Great Northern Railway Com
pany, ct al, Appellants.
/. The grant of right of way and
station ground upon public lands of
the United States to railroad compa-
MES under the provisions of the act
Of March 3, 1875, c. 152, IS Stat. U.
3. 1872, becomes operative only when
a railroad company specifically in
dicated as grantee by compliance