Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1912-12-07

property agreed to be sold. imports an
undertaking on the vendors part to
convey a marketable title; and such
| covenant is in no way affected by the
fact that the vendee had knowledge
that the vendors title was defective or
that they had no title, no can such
knowledge on the vendee's part De
construed as a waiver by him Of the
binding force of such covenant.
4. In an action to recover damages
as aforesaid, held, that evidence ttnd-
ing to show a parol agreement or un-
Outstanding by the vendee to accept a
warranty deed from plaintiffs with
existing defects in the title, is mad
Missile as tending to contravene the
well settled rule that the terms Of a
written contract cannOt be varied or
contradicted by parol.
5. Evidence of conversation be-
tween the parties relative to the de-
fective condition Of plaintiffs title,
held inadmissible for the purpose of
showing an oral modification of the
written contract. Under section 1882
r. c. 1905, "A contract in writing may
De altered by a contract in writing or
by an executed oral agreement. and
not otherwise" Such statutory rule
applied in the case at bar.
G.. In an action by a vendor to re.
cover damages for a breach of a con
tract by the vendee it is incumbent
upon the former to establish by COM
petent proof that prior to the com
mencement of the action he was ready,
able and willing to full perform on his
part, Notwithstanding the fac: that The
vendee had informed the vendor Of his
inability to carry out the contract on
mis- part.
(Syllabus by tht COURT
Appeal from district court, Suits
man county; A. G. Burr. special Judge.
From a judgment in defendants ia.
yor. Plaintiffs appeal.
Affirmed.
Knauf & Knauf, Of jamestown, N.
D.. for appellants.
Seller 4 Alymer, Thorp & Chase. of
jamestown. N. D., for Respondent
Opinion by Fisk, Jr. Al
In the Supreme Court, State of North
Dakota, April; 1912. Term.
A. w. Head and A. D. Kleinman, Ap-
p~ellants, VS.. J.. r. Strong, Respond.
ent.
Syllabus Of Opinion Denying Psti.
ton for ; Rehearina.)
4. On an appeal from a judgment
alone, the question Of the suficiency
Of the evidence is not properly be.
fore the court for decision, although
attempted to be raised by an assign
ment of error, where the suficiency
If such evidence was in no manner
challenged at the trial, but only by a.
motion for a new trial made long af-
ter the entry Of such judgment.
5. Section 1Ol OF the N. D. Consti-
tuition, which provides that every
point fairly arising upon the record of
the case shall be considered and de-
cided, and the reasons therefor con-
cisely stated" etc. construed and
held not to require a literal compli-
ance herewith. A point fairly arts
ing upon the record, within the mean
ing of said section, must one, the de-
cisi0n of which is necessary to the
final determination Of the cause,and
which is properly presented with q
f~llness and distinctness, rendering
1t impossible for the court to compre-
bend It in all It's hearings. Such, is
the we'll recognized and settled con.
struction OF like constitutional provi-
sions.
Appeal from District Court OF Stuts-
man County. Burke, j.. From . judy
ment in defendants favor, plaintiffs
appeal. Judgment affirmed and plain.
tits filed a petition for rehearing,
which petition Is deniel.