Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1911-10-27

of such document will be necessary
at the trial, notice to produce it Is
unnecessary.
2. Until there has been an accept
ance of a written order for machinery
to be shipped t, the purchaser at a
future date, the latter is at liberty
to countermand such order, as the
same. until acceptance, does not con.
stitute a contract but merely an order
or proposal to purchase.
3 Defendants letter to plaintiff
countermanding such order was as
follows:
Cummings, N. D., 1-4-190S.
J. L. Owens & Co..
Mpls, MINI.
Gentlemen
Please cancel our order of Aug.
Resp. yours,
Bemis & Whsle.
Held, sufficient cancellation of
such order and withdrawal of the
o.ier or proposal to purchase therein
contained.
(Syllabus by the court.)
Appeal from district court Trail
county, Pollock, }.
Action by J. L. Owens company
against Bemis & Whsle. From a judy
ment in defendants favor and from
orders denying plaintiffs motions for
judgment non obstante veredicto, and
for new tria, plaintiff appeals.
Affirmed.
Turner & Murphy, for appellant.
ca -
Opinion by Fisk. J.
In the supreme court, April term,
1911.
Ray Umstad. defendant and appel
liant. VS.. Colgate Farmers Elevator
company, corporation, plaintiff and
respondent.
1. Plaintiff. while in defendants
employ, received injuries while he
and one B., who was in charge of
defendants elevator as agent, were
experimenting with, or testing, a me.
chanical continuance which they had
installed for moving cars by attempt
ing to utilize power for such purpose
from the engine used to operata de.
PENDANTS elevator.
Evidence examined. and held. that
it conclusively appears that plaintiff
was not only guilty of contributory
negligence. but that he assumed the
risks incident to such experimental
tests.
Hence his recovery cannot be sus-
tanned.
(Syllabus by the court)
Appeal from the district court of
Cass county, Pollock, ].
Action by Ray Umstad against the
Colgate Farmers Elevator company.
From an order denying defendants
motion for Judgment Notwithstanding
the verdict or for new trial, defend
ant appeals.
Reversed.
Ball. Watson, Young & Lawrence.
for appellant
W. J. Courtnay, for respondent.
Opinion by Fisk, J.
In Supreme Court, State of North d.
kota, April Term. 1911.
Pfeiffer. plaintiff and appel.
liant; vs..
NJ. Norman, defendant and respond.
ent.
1. The effect of a pleading is not
necessarily determined by the techni-
cal definition of a single word. Words |
lsed in a pleading must be construed |
with reference to the context and |
when it is apparent that word is not
used in it's statutory sense courts will
interpret it in the light of its relation !
on1 oiv1 NV ~ ~
IS a whole.
Held, in the case at bar that the !
words "rescind and cancel" employed |
n the pleadings and particularly in |
he answer of the defendant, are modi-
led by ether language of the plead
ngs; and that they are not used to
Indicate statutory rescission of a |
contract
2. A condition sale contract does not |
convey title and if it's terms provide
therefor it entities the vendor to re-
AXE possession of the property des-
,ribed therein, on default by venddee,
# it has previously been delivered to
him and the rights Of the vendee are
when this is done. !
3. Under the contract considered |
n this case the title remained in the
vendor until all the conditions of the
should be performed by the
showing that the vendor re-took pos.
vendee and under it's terms. the facts
session of the property on consent of
all interested parties, no demand or !
notice was necessary and the contract
relations of the parties were termin-
ated when the vendor retook the pro-
)erty.
4. In the absence of any statutory
provision on the subject it is held
hat when a conditional sale contract
permits the termination thereof on de-
'ault of the vendee and the vendor re-
lakes possession of the property in
7olved, as he had right to do. the
vendee connot recover, in an action
1t law, partial payments made on such
contract, and to hold otherwise would
De to offer bounty for the violation
If contracts.
5. If the parties to such contract
enter into a new contract at the re-
quest at the request of the vendee,
after the vendor has resumed posses
sion, and their former contract rela-
ions have ceased, this does not en-