The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1910-05-30
Decisions Of N. D. Supreme Court

}. Supreme Court |.
Observation-Disclosures
167, and Lamb VS.. ms. Co., 49,. N. D..
800. approving the federal rule TO the
contrary is disapproved.
3. Where a policy of insurance has
been delivered and the premium col
lected with full knowledge of all the
facts 1t would operate as a fraud upon
the insured If tlRe insurance company
was permitted to avoid the policy after
a loss by urging the invalidity thereof
at its inception on account of stipula-
tions contained therein.
4. Restrictions in a policy limiting
the power of agents to waive condi-
tons except in a certain manner cam
not be held TO apply to those conditions
which relate to the inception OF the
contract where the agent with full
knowledge of the facts issues the policy
and collects the premium and the in
sured has acted In good faith.
Syllabus by the court.
Appeal from district court, Cass
county Pollock, judge.
Action by John Leisem against the
st. Paul Fire and Marine Insurance.
Co. From an order overruling a de-
murrer to the complaint, defendant ap-
peals.
Affirmed.
Geo. A. Bangs for appellant.
v. r. Lowell, for respondent.
Opinion of the court by Fisk, Judge,
all concurring except Spalding, judge,
dissenting.
In the supreme court, state of North
Dakota, April term, 1910.
Robert Cochrane. respondent, VS.. The
National Elevator Co, appellant.
/. In an action to recover for the al
legged conversion of certain grain claim
ed to have been delivered by plaintiff
to defendant Elevator Co., evidence as
to the delivery Of such grain examined
and held both competent and sufficient
to establish the quantity of grain so
delivered.
2. Evidence as TO the highest mar
ket value of the grain between the
date of the alleged conversion and the
date Of the trial, examined and held
both competent and amply sufficient
TO support the verdict.
3. Certain assignments predicated
upon rulings of the trial court relat-
ing to offered testimony as to the sys-
tenn and manner of transacting bust
ness adopted by defendant in its ele-
vator at Grand Harbor. held without
merit. Furthermore the rulings thus
complained of were not excepted to and
cannot be noticed. Held, further, thar
the appellants assumption that it was
not permitted to show payment for this
grain is not justified by the record
the exact reverse being true-but on
the contrary no competent evidence
was offered to prove such payment
4. The issues being as to whether
plaintiff delivered the grain to defend
ant as alleged and If so, whether de-
PENDANT has paid plaintiff for the same
the trial court properly excluded Of
fered testimony relative to private in
structions given by defendant to it's
local agent, and not communicated to
plaintiff, regarding the receipt of grain
DIT its elevator and also evidence tend
ing to show violation of such instruc-
lions.
5. Plaintiff was permitted over OBJ
lection to show the custom and usage
at Grand Harbor in receiving grain at
defendants elevator and issuing the
tickets therefor at a later date, held
non -prejudicial
6. Defendant offered in evidence
solely for the purpose of comparison
of handwritings a certain exhibit adj
mittedly hearing plaintiffs genuine
signature. The purpose of this testi-
mony was to aid the jury in determ-
lining the disputed question of fact as
to whether certain other exhibits pur-
porting to hear plaintiffs signature
to receipts for the payment. of this
Identical grain were his genuine sig
natures or mere forgeries. The trial
court excluded such offered exhibit
Held, that such ruling was erroneous
but non -prejudicial for reasons stated
in the opinion
Z. Irrelevant papers are not admis-
sible in evidence for the sole purpose
of furnishing standard of COMPARE
son but exceptions to this rule are
made in those cases where the papers
offered are conceded by the opposite
party to be genuine, or are such as he
is estopped to deny, or where for other
reasons no collateral issues can be
raised by their introduction.
s. The trial court instructed the jury
that the conversion took place. If at
ALL on Sept. 25. No exception was
taken thereto and the correctness of
such instruction was in no manner
challenged in the trial court. It there
fore became and is the law of the case
In view of this. appellants contention
in this court that the conversion took
place during the latter part Of October
and that there is no evidence showing
the highest market value or any value
of grain after such date, is untenable
(Syllabus by the court.)
Appeal from district court, Ramsey
county; John F. Cowan, Judge.
Action by Robert Cochrane against
the National Elevator Co. for the con-
version of certain grain.
From Judgment in plaintiffs favor
and an order denying defendants mo-
ton for new trial, defendant appeals.
Affirmed.
Van Derlip & Lum Guy c. Corliss
Of counsel) for appellant.
Burke. Middaugh & Cuthbert. for
respondent
Opinion of the court by Fisk, Judge,
all concurring.
In the supreme court. state of North
Dakota, April term, 1910.
Ellen Cline, respondent, VS.. Margaret
Duffy, appellant.
L. An application to vacate a default