Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1910-02-04
In the Supreme Court

J. l.. Mathews, plaintiff and respond
ent, VS.. Anna M. Hhnson, defend
ant and appellant
1. Parties are at liberty to make
any agreement or arrangement with
regard to their property that they
see fit; and to give to fixtures the
legal character Of realty or personal
ty at their option; and II the agree
ment Is such a one as will make the
property personal property, as be-
tween the parties, it is personal prop
erty and may be SO treated.
2. In an action to recover property
a Judgment in a former action against
third person, which invested plain
tiff with all the rights and title OF
such third person to the property, is
admissible.
3, The attitude to be allowed in
cross examination is largely discre-
tionary with the trial court and its
rulings in that respect Will not be
disturbed except in cases of abuse.
4. 1t is immaterial whether the
mechanics liens, on which the judg-
ment may he rendered, under which
mlaintiff obtained his right to the
property in question were valid or
invalid.
Syllabus by the court.
Appeal from the district court OF
Sargent county Allen j.
,Action by J. l.. Mathews against
Anna M. Hanson.
From an order denying motion FOR
a new trial.
Affirmed.
10. IS. Sem and J. E. Bishop, for
appellant.
l. Purcell and Divet, for respondent
IOpinion of the court 10y Carnody,
j., all concurring.
w. l.. Marchand, appellant. VS.. F. x.
IA. Perrin, respondent.
In an action by contractor to
foreclose a mechanics lien for bal
ance claimed to be due under an ex-
press contract, the answer puts in is
sue the allegation of the complaint
to the effect that plaintiff had sub
stantially performed the contract,
and also pleads four alleged counter
claims. AT the trial, plaintiffs coun-
sci moved to strike out certain of such
counter-claims and certain portions of
others. The trial court granted such
motion in part and denied the re-
mainder.
Held, for reasons stated in the
opinion, that such rulings were non.
prejudicial.
2. The findings Of the trial court
that the building erected by plaintiff
for defendant under the contract was
not built and completed in a good,
substantial and workmanlike manner,
but was built and erected in a care
less, negligent, unskillful and I'M
workmanlike manner Of inferior ma
terial, held AMPLY supported by the
testimony.
3. Plaintiff. having failed to prove
a substantial performance of the con.
tract on his part, cannot recover any
thing under the contract where de-
PENDANT is not shown to have. waived
such performance. !;
4. Evidence examined and held in
sufficient to show such waiver.
5. The mere fact Of making cer-
tain payments and taking possession
and OF occupying the building, does
not of itself amount to such waiver
or estop defendant from urging non
performance of contract on plaintiffs
part.
Syllabus by the court.
Appeal from the district court Of
Bottineau county: Templeton, j..
Action by w. l.. :Marchand against
F. e. A. Perrin.
From a judgment in defendants
favor, plaintiff appeals
AFFIRMED.
"A. Besancon, for appellant.
Weeks. Murphy and Noun, for re-
spondent.
Opinion of the court by Fisk, j.,
all concurring.
William Sheer, respondent. VS.. Clint
on Falls Nursery Co., foreign
corporation, appellant.
1. Ia complaint in an action to re-
cover as for money had and received,
held to state facts sufficient to con-
stitute cause of action where it ap-
pears that the money sought to be
recovered, consists Of an over pay
ment through mistake of fact Of the
purHhase price of goods purchased,
as result of deficiency in the ship
ment. although it appears from such
complaint that defendant had the right
during certain season to supply such
deficiency, and 1t Is not allaged that