Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1911-06-06
Supreme Court

John Boos, plaintiff and respondent,
VS.. Aetna Insurance Company, de-
PENDANT and APPELLANT.
l. Held. following McCabe V. Aetna
Insurance Company 8 N. D. 10, that a
recovery can be had in an action for
breach of parol made to insure
on parol agreement mtde with de-
PENDANTS agent to insure prior to the
expiration of the policy.
2. Evidence considered and held
sufficient to sustain the verdict.
3. The courts charge to the jury
examined and held to state the lay
correctly.
4. Affidavit presented on motion
for new trial on the ground of newly
discovered evidence considered, and
held that such affidavit pertained to
matters solely of a negative and cumu-
lative nature and that, therefore, there
was no abuse of discretion on the
part of the trial court in denying said
motion.
(Syllabus by the Court.)
Appeal from district court, Cass
county. Pollock. Judge.
EACNlOH Ny JOOo oS7oiHol IAS
Aetna Insurance Company.
From a Judgment in favor of the
plaintiff and from an order denying
la motion for judgment notwithstand-
ing the Verdict or in the alternative
for a new trial, and from an order
denying a motion for a new trial, de-
PENDANT appeals.
Affirmed.
Pierce, Tenneson & Cupler. attor-
neys for plaintiff and respondent.
Barnett & Richardson wv. H. Bou-
telle and N. H. Chase OF counseD at
|torneys for defendant and appellant.
Opinion of kneeshaw, special judge.
Hon. w. J. kneeshaw, Judge of the
Seventh judicial district sat with the
court by request.
Anna d. Murphy. plaintiff and respon-
dent VS.. Eugene Teutsch, ct al, de-
PENDANTS and appellants.
The acceptance of a partial payment
by the purchaser at an execution sale
prior to the expiration of the statutory
period of redemption as waiver to
the right to sheriff's deed and the ex
ecution debtor will be allowed to re-
deem after the expiration of such stat
utory period.
Where execution creditors purchase
property at an execution sale and
agree that their respective interests
in the certificate of sale be in pro-
portion to the relative amount of their
debts at the time OF sale their inter-
ests in such certificate is a joint one
and each is bound by the acts of the
joint owner.
An oral agreement by one of the
Joint owners of sheriff's certificate
of sale to extend the period of re-
demption is binding upon all the joint
owners of such certificate.
(Syllabus by the court.)
Appeal from the district court Of
Ward county, Goss Judge.
Action OF Anna p. Murphy, against
Eugene Teutsch, ct al.
Fro man action overruling demur-
rer defendant. Teutsch appeals.
Affirmed.
F.. b. Lambert for appellant.
Thompson & Schulz, for respondent.
Opinion of Crawford. special Judge.
Mr.. Justice Goss being disquaN-
fed, Hon. w. C. Crawford. judge OF
the Tenth judicial district sat with the
court by request.
Hilda Selland, plaintiff and respondent
VS., Halvor Nelson, defendant and ap-
pellant.
|. Charge of the court on the Ques-
ton of damages for physical injuries
and loss of time considered, and held
Il that the same is misleading and pre-
judicial.
2. Complaint for damages for as
sault and battery considered and held
to have been drawn on the theory
OF compensatory damages only, and
that the malice could not necessarily
be inferred or presumed from the
acts therein charged.
3, Eefore a recovery of punitive
or exemplary damages can be had in
an action for damages for assault and
battery it is necessary that the COM
plaint show on its face that the as
sault was wilful and malicious act,
so that from the acts charged malice
must be necessarily presumed or IN
ferred.
4. That here ding of wrongful
or unlawful act will not of itself war
rant or authorize the inference OF
malice, but malice may be Inferred
or presumed from the act itself If such
act warrants such inference or pre-
sumption.
5. Before punitive damages can
be recovered or before that question
can rightfully be submitted to the
Jury the complaint must be drawn on
a theory that will necessarily include
such damages by inference or pre-
sumption of the lay unless actual NAL
ice is shown on the trial without OBJ
lection.
(Sylla bus of the cOurt.)
Appeal from the district court OF
Pierce county. Burr, judge.
From judgment in favor OF the
plaintiff and from an order overruling
and denying motion for new trial
the defendant appeals.
Reversed and a new trial ordered.
l.. N. Torson and r. f. Wenzel. for
respondent.
A. f. Coger and T. A. Toner. for
appellant.
sN Ssprl