davidaulloa/AmericanStories huggingface dataset:
The Fargo forum and daily republican., 1910-02-05
DECISIONS OF THE SUPREME
COURT OF NORTH DAKOTA

Nortn Dakota October Term, 1909.
w. l.. Marchand, appellant, VS.. f.
x. A. Perrin, respondent.
I. In an action by a contractor to
foreciose mechanics lien for a ball
ance claimed to be due under an ex-
press contract, the answer puts in
issue 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 counsel
moved to striloe out certain of such
counter claims and certain portions
of others. The trial court granted
such motion in part and denied the
remainder.
Held, for reasons stated in the
opinion, that such rulings were nom
predudicial.
2. The finding of the trial court
tina building erected by plaintiff for
defendant, under the contract was
not built and completed in a good.
substantial and workmanlilxe manner.
but was built and erected in care
less, negligent. unskiHful and unwork-
manlike manner of inferior material.
held amply supported by the testi-
mony.
= Plaintiff. having failed to prove
substantial performance of the con-
tract on his part, cannot recover any
thing under the contract where de-
fendant 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
of and occupying the building does
not Of itself amount to such waiver
or estop defendant from urging non
performance OF the contract on plain
tifrs part
(Syllabus by the court)
Appeal from district court, Botti-
neau county; Templeton, j.
Action by w. l.. Marchand against
r.. X A. Perrin. From a judgment in
defendants favor. plaintiff appeals.
Affirmed.
A. Besancon for appellant.
Weeks. Murphy & Noun for re-
Opinion Of the court BY Fisk j., all
concurring.
Sargent County Case.
J. l. Mathews, plaintiff and re-
spondent, vs. Anna M. Hanson, de-
fendant and appellant.
!. Parties are at liberty to make
any agreement or arrangement with
regard to their property that they see
flt, and to give to fixtures the legal
character. of realty or personality at
their option: and If the agreement is
such one as will make the property
personal property, as between the
parties. IL Is personal property, and
may be SO treated.
2. In an action to recover property.
: Judgment in former action against
q third person. which invested plain
tiT with all the rights and title of
such third person to the property. is
admissible
o. The latitude to be allowed in
cross -eKamination is largely discre-
tionary with the trial court and It's
rulings In that respect will not be
disturbed except In cases OF abuse.
4 1t IL irnrnaterial whether the
mechanics liens. on which the judg-
Ynent was rendered, under which
plaintif obtained mis- right to the
property In question were valid or i'm
valid
.(Syllabus by the court.)
Appeal from district court, Sargent
county; Allen, ].
Action by ]. L. Mathews against
Anna M. Hanson.
From an order denying motion for
= new trial. defendant appeals.
Affirmed.
The Fargo forum and daily republican., 1910-02-05

I.pellant.
Purcell G. Divert, for respondent
Opinion of the court by Carmody T..
all concurring.
William Scheer. respondent, VS..
Clinton Falls Nursery Co., a foreign
corporation, appellant.
1. A complaint in an action to re-
cover as for money had and received.
held to state facts sufficient to con-
stitute a cause of action where IL an
pears that the money sought to be re-
covered consists Of an over payment
through mistake OF fact of the pur-
chase price of goods purchased, as a
result OF deficiency in the shipment.
although IL appears from such com
plant that defendant had the right
during a certain season to supply such
deficiency. and it is alleged that such
season had terminated at the time the
suit was brought, the parties having.
by contract, expressly stipulated, in
effect, that no goods shall be paid
for until actually delivered.
8. Plaintiff ordered from defendant
under a contract containing a stipula-
tion as above stated, certain nursery
stock consisting OF trees. The next
day after delivering same, plaintiff dis
covered deficiency In the shipment
and Immediately demanded the re-
turn to him of the portionsof the pur-
chase price corresponding to such de-
ficiency or the balance OF the trees.
Held ti1at Immediately upon a. de-
nial of such demand a cause of action
accrued in plaintiffs favor for the re-
covery Of such overpayment.
B. other contentious of appellant
relative to the sufficiency. OF the de-
mand and the nature OF the action.
considereda and overruled.
(SylIabus by the court.)
Appeal from the district court OF
Wells county; Burke, j.
Action by William Scheers against
Clinton Falls Nursery Co. From
Judgment in plaintiff's favor and from
an order overruling defendants mo-
tion for new trial, defendant ap-
peals.
Affirmed
Geo. X. Snaw, for appellant
J. J. Youngblood, for respondent.
Opinion of the court BY Fisk, j., all /
concurring. .
II Robert S. Noah, defendant, and APP
pellant, VS.. State OF North Dakota
plaintiff and respondent.
4. The crime OF murder is divided
into two degrees, in this state, @e-
pendant on the facts attending the
killing, that is, the absence or pres
ence OF premeditation and deIiberation.
These degrees do not constitute dis
tinct crimes. but degrees of the crime
of murder.
2. Section 1907, re. 1905, provid-
ing that whenever. a person prosecuted
for murder pleads guilty, he snail
designate his plea whether he pleads
guilty of murder in the first or sec
ond degree, Is not complied with by
plea that he pleads guilty as
charged in the information"
A plea on compliance with said Sec
'tion should be positive and definite
as to the degree and any indeffnite-
ness In respect to the degree or crime
In not remedied by reference to the
information in cases where the Of
Tense is divided into degrees
g. Under an information charging
murder In the first degree by. express
avernents, and designating that de-
gree BY name, a plea that defendant
is guilty as charged in the informa-
ton" is Indefinite as to the degree to |
which he pleads guilty as in the |
second degree ID also charged In such |
information.
1. The fact that the information
The Fargo forum and daily republican., 1910-02-05
PUBLICATION NOTES

The Metropolitan Magazine for Feb
ruary has for lead an expose of
EusaDia Palladino by Hugo Munster
burg. The writer's story is not as
convincing as 1t might be. bur IT rath-
er leads to the conviction that there
Is something to his views about the
Italian medium being something OF a
fraud. After the great number of
magazine articles lauding the medium
this of Munsterberg Is attracting con
siderable attention Among the name-
less is a story written about Minnea-
polls scenes i'm the squalid quarter.
There are many special features in
the issue. Metropolitan Magazine Co.
Twenty ninth street west, New
York; $3.50.
The February Sports Afeld-from
its beautiful front cover to its last
advertising page-is an exceptionally
attractive issue. q. II. Whitmore de-
scribes how mountain trapper waged
an unceasing war against family Of
panthers, and how, in the end. the
last OF the animals almost caused his
death. Many hnnting and fishing
trips are truthfully described. Sports
Afieid Publishing company. 35s Dear
born street. Chicago; $3.50
A notable list of contributors have
articles in The Keramic Studio for
February There are number of ex-
ceptionally interesting articles on pot
terry and decorating. The Keramic
Studio Publishing company Spring and
McDougal streets, New York: 81.
Keith's Magazine for February has
a large number Of beautiful designs
The Fargo forum and daily republican., 1910-02-05
Named Postmaster 1t Grafton.

washington. Feb. Representa-
tives Gronna and Hanna have recom-
mended the appointment Of E. H..
Pierce as postmaster at Grafton, and
Charles Guntharp as postmaster at
Edgeley. N. ID.
The Fargo forum and daily republican., 1910-02-05

for residences and cottages. Decora-
tions are also given prominence. Mas
L. Keith, publisher, Lumber exchange.
Minneapolis; $3.50.
The Fargo forum and daily republican., 1910-02-05
Attended Reunion.

Col. J. s. Frame of Grafton ID spend
ing the day. in the-city among friends.
A very successful Philippine reunion
at Grand Forks last. night is reported
by the major, who was In attendance.
The Fargo forum and daily republican., 1910-02-05
We Buy scrap iron.

Carload lots a specfaIty Correspond
ence given prompt attention. Fargo
Iron g. Metal Co, Fargo. ~. ID.
The Fargo forum and daily republican., 1910-02-05

A Forum Want Ad viii Sell It For You
A Forum Want Ad VIII Sell It For You
The Fargo forum and daily republican., 1910-02-05

no answer a want ad is to assure
yourself as to whether or not II offers
an important opportunity for you.
The Fargo forum and daily republican., 1910-02-05
New Spring Goods.

A choice variety of new foulard silks
in neat patterns ON display at A. L.
Moody's.
The Fargo forum and daily republican., 1910-02-05
Too Late to Classify.

WANT "A sewing girl Apply. to
Miss Kragstad. 100 Ninth street
north.
The Fargo forum and daily republican., 1910-02-05

= Sorum want Ad VIII Sell II For You
"A. Forum Want Ad WIN Sell II Tor You
The Fargo forum and daily republican., 1910-02-05

FOR RE NTTurnished room, strictly
modern. NO. l. Park fiat.
The Fargo forum and daily republican., 1910-02-05
REPORT OF THE CONDITION or
Dakota Trust Company
ct Fargo, in the State OF North Dakota. ne ths
close OF business, January 81, 1910.

ct Fargo in the State OF North Dakota. ne the
close OF business, January 81, 1870
RESOURCES
Loans and discounts ......S Ia z9s m
SECURITIES on deposit with State
eyssd4sI: rasiiss.t secured .sd as..ss..d "''s @ g
Bonos, warrants, stocks, tax ceg-
Rtht;.s .iatGstss icl,. claims, etc; 10 asl q
q: S:ss; .ss;;; s, ;:.l ;s. ;;s.,. ~ n
Checxs and other cash
items .....s,.a.......... 3S3 90 I
Cash -................... s,i77 s n ss3 ls
Total ........................... $ sss,ese y
LIABILITIES
Capital stock paid Ia ......s eg.AOo *
Surplus or re 4arve fund. ............ 5000 O0
undlyided profits less expenses
Deposits for savings ac-
For safe keepins,on de-
Tine certificates OF de-. 'oA' =
p0sis 80. eO,s70 % i.i7Oooe1a
Total ...s............s 224 $50 sB
srATE cE EoHra DAxorA, =.
COUNTY OF CAss
shove statement lis srue, to che best Of fnY
WI LoRsHBoUGH,
Subscribed and sworn 10 before me this sd
tseal) Notary ssas Fable
Correct Attest.
4 !. ssaaa oas.s Di.ss.es.
The Fargo forum and daily republican., 1910-02-05

O. s. Sem and j. E. Bishop, for ap-
pellant.
Purcell e. Divert, for respondent.
Opinion of the court by Carmody, T..
all concurring.
The Fargo forum and daily republican., 1910-02-05

Keith's Magazine for February has
a large number Of beautiful designs
The Democratic banner. (Mt. Vernon, Ohio) 1898-192?, 1910-07-19
NEWARK'S JAIL IS
POPULAR RESORT
Prominent Citizens Said to Be
Headed That Way.

Newark, O., July 16.-Arrests that
will startle the citizens OF Newark
are expected at almost any moment
in connection with the lynching of
Carl Etherington. So far 20 persons
have been taken into custody for al
legged implication in the mob violence,
but the authorities, fearing another
outbreak, refuse to give out the pris-
oners' names. 1t Is believed that
sons Of the prisoners, to save them
selves, will turn states evidence and
make revelations that will result in
wholesale arrests, enmeshing some OF
the city's best known residents.
Mayor Atherton, who resigned, an
nounced that he would remain here
to disprove Attorney General Den
mans charges that he took Ethering-
toms hand after the lynching and
then walked away smoking cigar.
The Democratic banner. (Mt. Vernon, Ohio) 1898-192?, 1910-07-19
BARTLETT
Is Arrested On Charge Of
NOn-SuppOrt

Howard Bartlett was arrested on
Thursday afternoon by Constable Mil
ton Simpkins of Squire Harter's court,
while at work at the state farm. In
May, Bartlett was arrested on a war
rant sworn out before Squire Harter
by his wife, Mrs. Edith Bartlett, charg-
ing him with non-support of herself
and infant child. The matter was tenn
porarily settled on an agreement be-
tween the two and they were to try
living together for a period of one
month and at the end of that time,
she was to report to Justice Harter.
The arrest Thursday was the result OF
breaking the agreement on Bartlett's
part. In default of bond, he was plac-
ed in Jail to await his hearing.
The Democratic banner. (Mt. Vernon, Ohio) 1898-192?, 1910-07-19
RIOT CASES
Likely To Be Heard By Judge
WGygandt

There seems to be well defined
opinion that Judge w. e. Weygandt,
of Wooster, will likely be the man
who will be called upon to sit at the
trial of the riot cases at Newark.
The matter has been talked over in
judicial circles the past few days, and
the concensus of opinion all over
seems to be that it will probably be
the Wooster man who will bring down
the job.
Judge Seward is the resident judge
at Newark, but there seems to be ev-
cry probability that he will either be
disqualified, or will ask to be relieved.
In this case another judge will have
to be selected and as stated the choice
is likely to fall on the Wooster man.
At the Mt. Vernon judicial conven-
tion Tuesday,wh Judge Taggart was
renominated for the circuit judgeship,
this matter was talked over informally
by number of prominent attorneys
in the hotel lobby, and the general
belief of the lawyers was that Wey-
gandt would be qualified to sit at the
trial of the case.
A number of reasons were advanced
in support of this belief.-Wooste Re-
publican.
The Democratic banner. (Mt. Vernon, Ohio) 1898-192?, 1910-07-19
RECEIVES MANY THREATS
Newark and GAINESVILLE Vets Write
Letters to Weybrecht.

Letters to Weybrecht.
Columbus, O., July 15.-In his re-
port to Governor Harmon, Adjutant
General Weybrecht makes this state
ment: my impression from my in
tervie%s with Sheriff William Linke,
which has been strengthened hy fur
their information received, is that
the sheriff not alone absolutely evad-
ed and neglected his duty, but in a
measure encouraged the mob in II
work.
General Weybrecht says the mob
contained anywhere from 5000 to 12,'
900 people. He declares, however
that the actual work-that is the
battering down of the Jail doors, the
taking of Etherington from his cell
and his lynching-was done by from
80 to 40 men.
General Weybrecht said he had re
ceived number Of threatening let
ters from Newark and GAINESVILLE
most of the writer's declaring they
would "get" him because of his activ'
ity in the Newark case.
The Democratic banner. (Mt. Vernon, Ohio) 1898-192?, 1910-07-19
WINSLOw HOWARD
Is Visiting At His Old Home In Rock
Island, III.

Winslow Howard of Mt. Vernon, o.,
is in the city for a few days visiting
old friends and making new ones. Mr..
Howard was a member of the city
council twenty years ago and repre-
sented the First ward. At that time
he was working in the glass works as
blower.
After the works were closed down
here he went into the natural gas
belt and has been working at his old
trade until within the past three or
four years.
He will remain for three or four
days yet.-Rock Island, ILL.,, Daily I'm
ion.
The Democratic banner. (Mt. Vernon, Ohio) 1898-192?, 1910-07-19

the bearing down. L recommended IL
to some friends and two of them have
been greatly benefited by it. - Mrs.
MAE MCKNIGHT, Oronogo, Mo.
Another Grateful Woman.
st. Louis, Mo. Il was bothered
terribly with q female weakness and
had backache, bearing down pains and
pains in lower parts. I began taking
Lydia L. Pinkham's Vegetable Com
pound regularly and used the Sanative
Wash and now l have no more troubles
that way" Mrs. AL. HERzoG, 5722
Prescott Ave-, st. Louis, Mo.
Because your case is difficult one,
doctors having done you no good,
do not continue to suffer without
giving Lydia E. Pinkham's Vegetable
Compound a trial. 1t surely has cured
many cases of female ills, such as in
flammation, liberation, displacements,
fibroid tumors, irregularities, periodic
pains, backache, that bearingdown
feeling, indigestion, dizziness, and ner'
vous prostration. 1t costs but q tritle
to try it, and the result is worth mil
lions to many suffering women.
The Democratic banner. (Mt. Vernon, Ohio) 1898-192?, 1910-07-19
BAcoN-ToLAND WEDDING

Philadelphia, July 16-Many promi-
nent society persons journeyed today
to White Marsh to attend the wedding
of Miss Priscilla Toland, daughter of
Mr.. and Mrs. Edward Dale Toland,
and Gaspar Griswold Bacon, son of the
American Ambassador to France, and
Mrs. Robert Bacon. The ceremony
took place at the country home of the
brides parents and was followed by
an elaborate reception.
The Democratic banner. (Mt. Vernon, Ohio) 1898-192?, 1910-07-19
RESIGNS UNDER
HEAVY PROTEST
Mayor AtherlOn Sheds Tears as
He Signs Document
PARTY LEADERS ARE INSISTEhT

Newark's New Mayor Goes After
Rose Law violators Roughshod and
Gives Police Department Another
Shaking Up - AdJutant General
Weybrecht Receives Threatening
Letters as Result of Activity In
Running Down Rioters.
Newark, O., July 15.-Herbert Ath-
erton, deposed mayor of Newark,
broken-hearted and with tears in his
eyes, rendered his resignation to
Acting Mayor John Ankele. Ather.
ton did not want to resign, but after
party leaders had brought great pres
sure to bear upon him, he consented.
"They have forced me to resign;
couldn't do otherwise. tried to
please them, but the kind of an ad-
ministration have always given
them did not carry me through.
don't know what | will do or where
will go. l have absolutely nothing
at present to turn my hand to-" sob
bed Atherton
In his written statement resigning
the mayorship Atherton, speaking OF
the lynching, said: 81 did what
thought | should do and believed
was following the wishes of the ma
jority of those who elected me-"
Atherton made hard fight against
resigning. He wanted to defend him
self before the governor, but the
strongest kind Of pressure was
brought to bear on him by the Demo
cratic leaders and by his friends
who wanted him to take this course
to forestall certain removal. After
numerous conferences and several
delays of announcing his decision
Atherton finally signed his resigna
ton.
Mayor Ankele made another shake
up in the police department when he
suspended Patrolmen James Callan
Charles Moore and Charles Cooper
rider on general charges of gross
neglect of duty. These cops were or
duty the night of the lynching.
Mayor Ankele sentenced the first
Rose law violator to be brought be
fore him. August Sisci, who was ar
rested for running "speakeasy,
paid fine of $50. Mayor Ankele
warned him not to engage in the salt
of intoxicants again, and that il hi
was arrested second time that thu
fine would be doubled plus a work
house sentence.
The Democratic banner. (Mt. Vernon, Ohio) 1898-192?, 1910-07-19
THREATENING
Letter Received By Constable
SimpklHS On Friday
Alleging That He Has Talk
ed Too Much
About The Recent LynChiDg
At Newark, 0.
Constable To Start lnVGStiga.
tiOn At Once
And Find Out The Author OF
The Letter

Constable Milton Simpkins' life is
in danger.
On Friday morning Squire George
S. Harter received a typewriter let
The letter was received along with
number of others and Mr.. Harter paid
no particular attention to it until the
seal was broken and he saw that the
paper inside was piece of typewriter
foolscap which had been torn in two
at the middle. 1t appears that some
person or persons have it in for Con-
stable Simpkins and took secret
means of attempting to scare him by
sending him a threatening unsigned
letter. Mr.. Simpkins states that sever
al days ago, he was talking with
friend on the street concerning the
trouble in Newark when the dry detec-
tive was lynched and that in his
statements to the friend, he said moth
ing out of the way concerning either
the wet or dry side, neither did he
make any remarks about burning any
one at the stake.
Constable Simpkins is very cour-
ageous man and the letter which he
received from Squire Harter, on his
arrival at his office on Friday morn
ing, did not affect him in the least.
1t is needless to say, however, that
his ire was somewhat aroused after
he had completed reading the letter,
which had evidently been written by
some very uneducated person or had
purposely been written with very bad
English. The threat to hold meet
ing and prefer charges against the
constable with view of deposing him
from office, does not worry him eth
er as he stated when being interview
ed on Friday morning that if anyone
was anxious to get his job, they could
have it, although he did not approve
of underhand and treacherous tac-
tics.
A rigid examination of the matter
prehend the author of the letter, prob
ably for more reasons than one. Mr..
Simpkins also states that while talk
ing to his friend on the street, he
made some remark about the men
from Kentucky having hard time
making a trip to Newark to lynch
few persons and shoot up the town.
This statement made by the constable,
was also brought up indirectly by the
author of the letter at the bottom OF
his communication when he said that
at might be well to suggest that this
aint Texas too"
The following is an exact copy OF
the letter received by Constable Simp-
kins:
"Have Simpkins shut up about burn
ina detectives and temperance work.
ers at the stake or he will lose his
lob for there is talk of meeting to
have charges made for unbecoming
conduct in an officer and a lot of folks
is mighty sore over the Newark case
and 1t wont take much to start things
and hate to see the old -- get
into trouble. A word to the wise is
sufficient and officers is not in very
good repute in the state just now any
how. They are after him and he
better listen to friend.
at might be we'll to suggest this
aint Texas too"
The Democratic banner. (Mt. Vernon, Ohio) 1898-192?, 1910-07-19

FARMS FOR SALE-50 acres, 3h
miles from city, price $500. Also o
stock and grain farm, containing $50
acres, has four producing gas wells.
New Groom dwelling. Price $52 per
acre. Stream e Rimer, If