The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1912-09-25

In the supreme court, state of North
Dakota, April, 1912, term. ~.
The Aultman & Taylor Machinery
Co. a corporation, plaintiff and APP
pellant, VS.. N. Runck, J. r. Runck.
and M. Runck, individually and as CO.
partners doing business under the firm
name and style Of Ru1ck & CO., de-
PENDANTS and respondents. g. i
l. Plaintiff and defendants entered
into a contract in writing whereby de-
PENDANTS were constituted the agents
of plaintiff for the sale of machinery
manufactured and handled by it, in
certain territory in this state. The
contract fixed the prices at which the
machinery was to be furnished defend
ants, the terms on which it might
be sold by them, how commissions
should be paid to them; and contain
ed a provision that defendants should
not deliver or use any machinery COW
cred by the contract until q regular
order should be taken on one of the
plaintiffs blank orders nor until fully
settled for by the purchasers, in cash
or by notes, and that In case defend
ants should deliver any such machin-
cry to any customer Or other person
before taking a written order there
from or before such machinery should
be fully paid for by cash or notes, the
WOulu pay 10 Sdlu pldln-
tiff on demand, the net list price of
such machinery, and waive all claims
under the contract Of warranty by
plaintiff on any machinery SO deliver
ed without settlement:
/. Such agency contract also provided
that when any travelling agent or en-
ploye of the plaintiff should in any
way render any assistance to the de-
PENDANTS In making sales, or other
Uyian ha ahn1II6 he MnnSi6arad Enln1xy
the agent or employee of the defend
ants, and no act of such agent or m
ploye should in any way bind plain
tiff. The evidence received is without
conflict in any material respect, and
shows that n Lake. travelling agent
for the plaintiff, with the consent and
advice of defendants made a special
price to g. third party on certain ma
chinery included in agency contract,
for the purpose of introducing 1t in de-
PENDANTS territory. Defendants COM
pleted the negotiations for the sale
thereof and obtained the signatures of
the purchasers to the rider, The ma
chinery was shipped to defendants, ac-
companied by a draft on h purchaser,
attached to the bill of lading. It was
TO be a cash sale. Defendants deliver
ed such machinery without settlement
of any kind. Held, that the facts bring
the sale within the terms of the agency
contract recited, and render defend
ants liable, as a matter of law, for
the price Of such machinery, and that
by delivering the anne without set
Element they waived any claim for
breach of warranty, and that the trial
court erred in submitting the question
as to who made the sale, to the jury.
q. For the other facts relating to
the contract and bearing upon this de-
cision, see opinion.
(Syllabus by the court).
Appeal from a Judgment of the dis
trict court Of Barnes county, Burke, J,
Reversed.
Turner & Murphy, Fargo. N. D., for
appellant.
Page & Englert. Valley City, N. d..
for respondents.
Opinion by Spalding, G. j., Burke, j..
being disqualified, did not participate,
Hon. Chas. Al. TempIeton, judge of the
First judicial district, sitting in his
stead by request.
James Johannes, plaintiff and
respondent, VS.. Charles Coghlan, de-
PENDANT and appellant.
i. The granting Of an application
to vacate a defaul Judgment after
| appearance by defendant is largely
within the discretion of the trial court
Q. Such q Judgment will not be va
Gated when the defense pleaded is not
meritorious but is clearly frivolous.
8. 1t is the duty Of litigants tc
watch the progress of proceedings in
court, rather than of the court to ac-
c~ornrnodate its business to the con.
tM G&Et E