The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1911-10-30
DECISIONS OF The
SUPREME COURT


Dakota, April term. 1911.
william Pfeiffer, plaintiff and appel
liant. VS.. M. Norman. defendant and re-
spondent.
/. The effect OF a pleading Is not
necessarily determined by the technical
definition OF single word. Words
used in a pleading must be construed
with reference to the context and when
1t is apparent that a word Is not used
in its statutory sense courts will in
terpret 1t in the light OF it's relation to,
and as explained by the pleadings as
whole.
words rescind and cancel employed in
the pleadings, and particularly in the
answer of the defendant, are modi-
fled by other language Of the plead
ings, and that they are not used to
indicate a statutory rescission Of a
contract.
2. A condition sale contract does
not convey title and If its terms pro-
vide therefor it entities the vendor 20
retake possession OF the property de-
scribed to him, and the rights OF
the vendee are terminated when this is
done.
3. Under the contract considered in
this case the title remained in the
vendor until all the conditions of the
contract should be performed by the
vendee and under its terms, the facts
showing that the vendor retook pos
session Of the property on consent Of
all interested parties, no demand or
notice was necessary and the contract
relations of the parties were deter
mined when the vendor retook the
property.
4. In the absence of any statutory
provision on the subject 1t is held
that when a conditional sale contract
permits the termination thereof on de-
fault of the vendee, and the vendor
retakes possession Of the property in
volved, as he had right to do, the
vendee cannot recover, in an action
at law, partial payments made on such
contract, and to hold otherwise would
be to offer bounty for the violation
Of contracts.
B. If the parties to such a contract
enter into new contract at the re-
quest OF the vendee, after the vendor
mas resumed possession, and their
FORMER contract relations have ceased,
this does not entitle the vendee to
recover payments made under the or
iginal contract,
s. Any rights which may have ac-
crued to the vendee to notice or de-
mand, although time was made of the
essence of the contract involved in this
suit, were waived.
(Syllabus by the court.)
Appeal from a judgment entered on
motion for Judgment Notwithstanding
the verdict or for new trial, by the
district court Of Grand Forks coun-
ty Templeton. ].
Affirmed.
w. ]. Mayer, for appellant. Murphy
& Duggan, for respondent.
Opinion by spalding. j.
American Case e. Register Co, ap-
pellant VS.. Walton & Davis Co., re-
spondent
l. Defendant was permitted over
plaintiffs objection. to prove a con-
versation In which plaintiffs sales
agent made certain representatio
regarding the quality Of a certain ac-
count register ordered by defendant
from plaintiff through such agent.
Plaintiff asked and was granted per-
mission to cross examine defendants
witness for the purpose of showing
that the contract was in writing, and
after proving such fact offered the
written contract in evidence as
part of such cross examination, which
contract contains stipulation that
mo agreement of promise. written or
verbal, not appearing in the original
will be binding upon the American
Case & Register Co." Held, that the
exclusion of such offer constitutes
prejudicial error.
2. Such offered proof was rejected
because of the fact that the existence
of such written contract had not been
pleaded by way Of reply to the an
swer
Held, that such ground is unten-
able.
3. Before evidence Is admissible of
an offer by yendee to return to the
| vendor the personal property pur-
chased, foundation must be laid by
proving right to rescind the sale.
| 4. In a suit on a promissory note
the defense urged in the answer was an
alleged failure OF consideration. At
| the conclusion of the trial a verdict
in defendants favor was directed by
the court. Held. error. there being
no evidence to establish such de-
| Tense. 41
| (Syllabus by the court.)
| Appeal from district court Stark
county. E. B. Goss. special Judge.
Action by the American Case & Reg
lister Co.. against Walton & Davis Co.
From a judgment In defendants IA
vor rendered on a verdict directed by
the court. plaintiff appeals.
Reversed and new trial ordered.
Thomas H. Pugh, for appellant. t.
F. Murtha, for respondent
Opinion by Fisk, ]. Goss, j., not
participating.