The evening times. [volume] (Grand Forks, N.D.) 1906-1914, 1912-07-01
x Supreme Court Decisions Il

oupfeme court DECISIONS "
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j. H. Mulroy. Plaintiff and respondent.
VS.. George j. jacobson, Defend
and and appellant.
l. Defendant, a life insurance agent.
and plaintiff. a farmer, had negotia-
tions regarding life insurance which
resulted in defendants securing an
ordinary life policy for s~S5.000.00 on
plaintiffs life which plaintiff refused
to accept. claiming that his applica-
tlon had been for a paid-up policy in
such amount as certain notes. secured
and unsecured. which he transferred
to defendant. would pay for. The
record shows that two applications
We're made but is in conflict as to
whether n of them was signed in
blank by plaintiff, and as to his in
structions. Defendant claims the pol
Icy was to he for such q sum as the
notes transferred would pay the first
premium on, while the plaintiffs con-
tention is that he was to receive such
an amount of paid-up insurance as the
notes would buy. On discovering their
misunderstanding defendant refused
to return plaintiff the notes. Held,
under these facts, and others state in
the opinion, an action in trover would
lie.
z. Their having been a controversy
as to which of two applications for
insurance was to be used. and whether
one Of them had been signed in
blank. and if SO whether it had been
hlled out by the agent in accordance
with instructions; and the evidence
being in conflict on those questions.
the plaintiff might properly show his
version of the facts relating thereto to
enable the jury to determine whether
a contract existed at All, and whether
the defendant had ever been the own
er Of the notes in controversy.
3, The sS5,000 ordinary life policy
was obtained and forwarded by mail
from Grisgs county to plaintiff in New
Mexico. He Immediately refused to
accept such policy, and returned it in
a letter With his reasons for doing so.
His refusal resulted in correspondence
between the defendant insurance agent
and plaintiff. The letters written by
defendant were received in evidence
without objection and had Il tendency
to show. among other things, that he
was not insisting that plaintiff was
under obligation to accept the policy
Sci and contained arguments and
reasons apparently advanced for the
purpose of persuading plaintiff that
n e policy obtained vas a better form
- 10" " MN tldn uQe one
which he supposed he a applied for.
In plaintiff s replies to such letters he
attempted to refute the statements
and arguments of defendant. Held.
thai parts of these letters We're COM
petent at least for certain
and if they contained incompetent
matter it should have been specified
IN the objection to their receipt: and
the objection made having failed to
do so the whole of such letters was
properly received in evidence. Held,
that they We're called forth by the
statements and arguments contained
In the letters written by defendant,
ana Tor his reason and those before
stated We're properly received in evil
dence.
4, Proof of the value of the notes
in question was not made as of the
exact date of the conversion. Held,
that the rule heretofore esta blished
ny inns court regarding the market
value of grain, relied on bv
is not applicable, as the value of grain
~f1uctuates almost daily while that of
promissory notes is presumed. in the
absence of evidence to the contrary, to
be he'll face value.
State of North Dakota. plaintiff and
respondent. VS.. Thor Moeller, defend
ant and appellant.
l. Upon a former trial Of this ac-
ton in the district court one DR.. e.
was q witness for the state. He was
asked several questions upon cross
examination to which objections were
sustained by the trial court. which
rulings We're reversed by this court
upon a former appeal. At the present
trial below the said DR.. f. was outside
Of the jurisdiction of the trial court
ana his testimony was given by the of
lc1al reporter of the former trial from
ms short-hand notes. Appellant con-
tends that his testimony was i'm
properly admitted because he had no
opportunity to cross-eXamine the wit
ness upon the former trial. However.
the statement of the case shows that
the same questions We're asked the
doctor upo the former trial and that
he answered the same without obiec-
ton. The statement of the case upon
the former appeal being much alb
show the true facts and mislead this
court at that time. Under the facts
now shown it is held that defendant
had a full opportunity to cross exam
Inc the witness upon the former trial
and hat his objection to the testimony
upon the second trial upon that
ground was properly overruled.
=. mere one Dale was an accom-
plice with defendant in the commits
sion of the o%ffense. and whether his
acts as such in furtherance of the
common object tended to show the
guilt of the defendant were facts for
the jury to determine. and the testi-
mony offered at the trial of acts done
by Dale in furtharance of such COM
O HADJEY AND IOH
ROTH MEMTTOMEn