The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1910-05-16


In the supreme court, state of North
Dakota. April term 1910, Thomas Ca
sew appellant, VS.. First National bank
of Nome, corporation, respondent.
/. Action to recover damages Tor
the conversion of certain grain. Inc
undisputed facts disclose that the
grain was raised by one A. under the
ordinary croper's contract entered into
with plaintiff, the owner of the land'
NV the terms Of which the title to All
crops was reserved in plalntlH as Sc
curitv for the performance by "A. VI
tba towns of the contract ana until
a division of the grain. Prior TO sucil
1tyistop defendant with the consent OF
+oolr ond appropriated 400 bushels
- r,,hoo+ which upon full compliance
with the contract by A. and the pay
,v,4 20 oil advances made by plaint1n
| tn him would belong to A. Counsel
,,pon both sides tried the case upon the
theory that plaintiff could not receiver
~ the equitable title to salo Whea' W.
g. Tn other words, that the test OF
n1aintiff's rights to recover shoulo no
Tyhather anything was OWING Ny a.
20 nIaintiff under the CONTRACT. r1elu'
tbat such theory must prevail IN tllls
oo,,~+ and the questions presented oh
A. onnaaI determined in accordance
! Herewith. Lila +ha+
+poro ,s a substantial conflict upon the
fss,,o os to whether, at the date OF the
auoged conversion, A. was indebted un-
da, +ba contract to plaintiff In any
Gun, The verdict of the jury having
IS,,be+an+iaI support in the evidence
4tis court will not weigh the CONNECT
TO- evidence nor disturb the order OF
the trial court denying platinum
ton for a new trial -- trial
8. The application for new Sc
upon the ground OF alleseu lisU -
Cheney of the evidence 10 suPPotU ~
verdict. is addressed to the SCUM u,o
erection of the trial court ana tle olue o,
of that court denying such ne" tllal
will not be reversed unless the recoLu
discIoses a. case of abuse OF ulscreli0Ai
No abuse of discretion Is SHOWN
Certain instructions OF the court
| RI the Jury relative to the puruen u
nroof also as to court matters which
| the iurv should consider in deterih-
lining the status of the ~ccount oetWeen
plaintiff and A., considered and helo'
For reasons stated in the opinion not
erroneous.
(svllabus by the courtO
| Anneal from district court, Barnes
county, Burke, ]. .,u
From a judgment in detenaants
favor and from an order DENYING
motion for a new trial, plaintiff ap-
tpeals.
Affirmed.
A. p. Paulson for appellant.
Page & Englert, for respondent.
Oninion of the court by Fisk, j.,
all concurring.
In the supreme court, state of North
Dakota, April term, 1910.
Edward Solberg, plaintiff and re-
srondent VS. Geo. SchIosser, defend
ant and appellant.
I. It is not negligence, as a matter
of law for a person to drive upon
dangerous or defective highway
knowing 1t to be such, unless the
dangerous or defective condition is
such that a person Of ordinary prud-
ence would not attempt to drive over
/
it
2. knowledge of the dangerous
condition of a highway however, I'M
poses a duty upon a traveller to exer-
else such care as the circumstances
demand.
| 2 Tn case of conflict in the evidence
as TO the condition of a highway at a
point where it is claimed to have been
| dangerous for travel, it is a question
for the Jury to determine whether 1t
was dangerous or not.
a. Where the evidence is such THAI
different persons may reasonably
reach different conclusions, the ques-
ton of the negligence Of the defendant
and of the contributory negligence OF
the plaintiff is for the jury.
<. The complaint considered and
held TO set forth a cause of action
for a violation of a, duty not to render
a highway dangerous by placing and
leaving dirt thereon in a negligent
/ manner, and not to state cause of
action on a breach of contract.
6. A person contracting with a
drainage board to construct drain
under plans and specifications where
he has sole control of the work and
the board has no control or superin-
tendence thereof, is an independent
: contractor and not the agent of the
board.
T. Any person who wrongfully
renders a public highway dangerous
for travel by placing constructions
thereon, must respond in damages to
anyone injured in consequence of such
obstruction.
| (SyIlabus by the court.)
Appeal from the district court OF
Trail county Pollock, ].
| A4;.~ g., ,oIaiy,fife defendant am