Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1911-09-09

In the Supreme Court, State of
North Dakota, April, 1911, Term.
S. H. Lowe and J. S. Hayes, CO.
partners as Lowe & Company, Re-
spondent VS.. Martin L. Jensen, Ap-
pellent.
Where the plaintiff alleges an ,ex-
press contract as basis for recovery
they will not be permitted to recover
on an implied contract or quantum
maruit.
(Syllabus' by the court.)
Appeal from county court, Ward
county; N. Davis, J.
From judgment in plaintiffs
favor and an order denying defend
ants motion for a new trial. the
latter appeals.
Reversed.
Palda, Aaker Green & Kelso, for
appellant. !
Murphy & Wooledge, for respond
ent.
Opinion by Fisk, J.
In the Supreme Court, State of
North Dakota. April, 1911, Term.
w. T. Kennedy, Plaintiff and Re-
spondent VS.. State Bank of Bowbells,
Defendant and Appellant.
l. In an action to recover, as for
money had and received by defendant
to plaintiffs use, the proof disclosed
that plaintiff, a resident of Wisconsin,
sent to defendant bank at BoWbells,
this state, a draft for $1,700.00, pay
able to the order of one K, accom-
panied by specific written instructions
to deliver same to such payee only
on receipt by him of warranty deed
conveying to plaintiff, free and clear
OF REMEMBRANCE, a fee simple title to
certain real property, together with
plaintiff, such abstract and title to be
approved by plaintiff in the event of
any doubt arising regarding the title
as disclosed by such abstract. There
after, defendant forwarded to plaintiff
a warranty deed of such property to-
gether with an abstract of title there
to, which plaintiff refused to accept
or approve for the reason that such
abstract disclosed that the title to
such property had not passed from
the Government to the grantOr in
such deed; and such disapproval was
communicated, by letter, to defendant.
subsequently certain correspondence
was had between the parties relative
to the transaction, but the original in
structions were, in no manner, chang
ed or modified. Notwithstanding this.
defendant thereafter procured the
paye.e of such draf: to endorse same,
and it uassed such draft to its credit
in Minneapolis bank. It was stipu.
lated, in effect, that the grantor, in
such deed, never acquired title under
her homestead entry and final receiv.
er's receipt and that she relinquished
to the government, all claims thereto.
At the close Of the testimony a YER
dict was directed in plaintiffs favor:
held, not error.
2. An assignment of error, not ar
gued in the brief, will be deemed
abandoned.
3. An assignment of error cannot
be predicated on a ruling denying a
motion for a directed verdict made at
the close of plaintiffs case, where
such motion is not renewed at the
close of all'the testimony.
4. Whererthe record fails to dis
close that motion for a new trial
was made and denied, error cannot
be predicated on such alleged ruling.
(Syllabus by the court.)
Appeal from district court, Ward
county; E. B. Goss, Jr.
FIONA judgment in plaintiffs IA
vor based on verdict directly by the
trial court. defendant appeals.
Affirmed.
Palda, Aaker & Greene, for appel
liant.
D. c. Greenleaf and w. F. Doherty.
for respondent.
Opinion by Fisk. J. Goss, J. being
disqualified. took no part in the deci-
sion, Hon. Frank E. Fisk, Judge of the
Eleventh Judicial District sitting in
his place by request.