Bismarck weekly tribune. [volume] (Bismarck, Dakota [N.D.]) 1884-1943, 1911-09-15
SUPREME COURT

! SUPREME COURT |
ACKNOWLEDGEMENTS OBSERVATION-DISCLOSURES
In the Supreme Court. State of
North Dakota, April, 1911, Term.
Joseph Power, Appellant vs.. J. X
Hamilton. Respondent,
1. In constituting statute, the
courts will give effect to the spirit,
rather than the mere letter OF the
same, with view to calculating the
evident intention of the legislature,
and to this end, the courts, where
necessary to carry out the evident
legislative intent, will limit general
language Of an act to the cases con-
templated by 1t. In other words,
where the. enforcement Of general
statutory provisions, to particular
facts clearly not in the contemplation
Of the legislature, would lead to unjust
and absurd results, the court Is JUST
fled and required to limit the applica'
ton of such general provisions so as
not to thwart the legislative will
2. Applying the above rule OF stat
utory construction, HELD, constru"
ing Sec. 73S, R.. 1905, that the pro-
vision therein providing that vote
OF q non-registered person shall not
be received or counted unless sucn
voter furnishes on oath OF a house
holder and registered voter has no ap-
plication, where, as in the case at bar,
the officers, through an oversight
omit and neglect to meet as registra-
ton board: and when, as In the case
at bar, the n0n-registered voters, a.
mittedly are qualified electors, furnish
their affidavit, as required by said
statute, their votes must be received
and counted
(syllabus by the court)
Appeal from the District Court
Cavalier county, Kneeshaw, ].
Appellant contests respondents
right to the Office Of county auditor.
From judgment in respondents
favor, plaintiff appeals.
Affirmed.
w. B. Dickinson and Joseph Cleary,
for respondent.
w A. Mcintyre and c. M. Price.
for appellant.
Opinion by Fisk, J. Morgan, G. J.
took no part in the decision, Hon.
Chas. F. Templeton, Judge Of the First
Judicial District sitting In his place
by request.
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. Jenson, APP
pe1lent.
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
meruft.
(Syllabus by the court.)
Appeal from county court, Ward
county; N. Davis, J.
From a 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. ].
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.
1. In an action to recover, as for
money had and received by defendant
to plaintiffs use, the proof disclosed
that plaintiff, q resident of Wisconsin,
sent to defendant bank at Bowbells,
this state, a draft for $1,000, 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 ffcumbrance, 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 tie original in
structions were, in no manner. chang
ed or modified. Notwithstanding this,
defendant thereafter procured the