The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1911-09-11
Decisions Of the Supreme Court

G1-N--%--N-&-e-e--e-
In the supreme Court. State Of
North Dakota. April, 1911 term.
Joseph Power, appellant. VS.. J. x.
Hamilton, respondent.
/. In constituting a statute. the
courts will give effect to the spirit,
rather than the mere letter Of the
same. with view to effecting the
evident intention OF the legislature,
and to legislative intent. will limit
general language of an act TO the
cases contemplated by It, In other
words, where the enforcement OF gen.
eral statutory provisions, TO particular
facts clearly not in the contemplation
Of the legislature. would lead to un-
lust and absurd results, the court is
1ustified and required to limit the APP
plicatlon of such general provisions
SO as to tl1wart the legislative win.
O.. Applying the above rule Of sta
tutory construction, held, constituting
Sec. 7SS. r. C. 1905, that the provision
therein providing that a vote of
Non-registeEed person shall not be re-
viewed or counted unless such voter
furnishes an oath of a householder
and registered voter has no applica-
ton, where, as in the case at bar, the
officers, through an oversight, omit
and neglect to meet as registration
board; and when, as in the case at
bar, the non-registered voters, who
admittedly are qualified electors, fur
nish their affidavit, as required by said
statute their votes must be received
and counted.
syllabus by the court.
Appeal from district court, Cavalier
county, Kneeshaw. j.
Appellant contests respondents
right to the oflce of county auditor.
From a Judgment in respondents
favor. plaintiff appeals.
Affirmed.
w. B. Dickson and Joseph Cleary,
for respondent.
w. A. Mcintyre and @. M. Price, for
appellant.
opinion by Fisk, ], Morgan, G. ].
took no part in the decision, Hon.
Chas. 3. Templeton, judge Of the First
judicial district sitting In his place by |
request.
8. II. Lowe and ]. S. Hayes, CO.
partners as s. H. Lowe & company, VS.. |
Martin L. Jensen, appellant.
where plaintiffs allege an express |
contract as a basis for a recovery |
thev WIFI not be permitted to recover |
on an implied contract or quantum
merutt.
Syllabus by the court.
Appen from county court Ward /
county; n. Davis, J.
From a Judgment in plaintiffs favor
ana an order denying defendants
motion for a new trial. the latter APP
peals.
Reversed.
Palda. Aalzer. Green & Kelso, for
appellant.
Murphy & wooiedge, for respondent.
Opinion by Fisk, ].
w. 7. Kennedy plaintiff and respon-
dent, VS.. State Bank Of BowbeHs, de-
PENDANT and appellant.
1. In an action to recover, as for
money had and received by defendant
to plaintiffs use, the proof discloses
that plaintiff, a resident of Wisconsin,
sent to defendant bank at Bowbells,
this state, a draft for S1,70O, payable
to the order of one x, accompanied
by specific written instructions to
deliver same to such payee only on
receipt by 1t Of a warranty deed con-
veylng to plaintiff free and clear Of
incur1brance, a fee simple title to
certain real property, together with
an abstract showing such title In
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 plain
tiff a warranty deed of such property
together with an abstract Of title there
to, which plaintiff refused to accept or
approve, for the reason that such alb
stract disclosed that the title to such
property had not passed from the
to the grantor in such
deed; and such disapproval was COM
nurEcated, by letter, to defendant.
certain correspondence
was had between the parties relative
70 the transaction, but the original
instructions were, in no manner,
or modified. Notwithstanding |
this, defendant thereafter procured the |
payee Of such draft to endorse same, /
and it passed such draft to It's credit /
in Minneapolis bank. 1t was stipu-
lated, in effect, that the grantor, in |
such deed, never acquired title under |
her homestead entry and final re-
receipt and that she relin- |
pushed. to the government, all claims
thereto.
At the close Of the testimony a !
verdict was directed in PLAINTIFFS |
favor; held, not error.
2. An assignment OF error. not !
argued In the brief, viii be deemed |
abandoned.
8. An assignment of error, cannot |