The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1913-05-02
DECISIONS OF The
supreme COURT

In the Supreme Court, state OF
North Dakota, October term, 1912.
Great West Life Assurance Co., APP
peliant, VS.. A. FL. ShumWay, n. Goer
and A. q. Bel. RESPONDENTS.
1. Sec. 1888 R. C.. 1906 expressly
authorizes the taking of exceptions to
dep3sitiells upon tll., grounds Of In
competency and ~irrelevancy at the
time the am ii offered In evidence.
IT Is accordingly held that defendants
objection madeSfor the first time dur
ing the reading of the deposition, to-
certain testimony as to the status Of
the account between plaintiff and its
agent was properly sustained 1T APP
5pearing that such account was kept
by plaintiff in books of accounts which
books were the best evidence.
2. Respondents are sought to be
held liable to appellant Assurance
company, as sureties, upon a certain
bond given to indemnify it against the
acts and defaults OF its agent, one
ulation that athe companys books
shall, from time I'd time and at all
times, be accepted and received and
in fact be as against the agent
and sureties prirna facie evidence of
the amount of the Indebtedness of the
agent to the company, and of his ae-
counts, dealings n ~transactions with
5IALC GOAihpIAiy #OhNOAL ltR H1CLEhAL-ShaE <ALs4LAAG
trial PLAINTIFF sought to introduce ex-
hibits G and %. the former purport-.
ing to be a mere copy OF the cernpany's
ledger account with Shumway, and
the latter merely a detailed statement
of said account claimed togK1aye been
taken from plaintiffs books.
Held, that such testimony was in
competent and properly excluded.
3. The witness whose deposition
was offered In evidence testified TO his
mere conclusion that EhumWay ssis
now Indebted to the plaintiff company
In the sum OF $45A. 80.
Held, that such testimony was
clearly incompetent and was properly
stricken out on defendants motion.
Al certain letter written by
ShumWay to the company shortly pri-
or to the termination Of his agency
contract. was offered In evidence for
the purpose of proving an admission
by Shumlway that he was Indebted to
the company in a certain sum. Al prop
er foundation was laid for the intro
duction OF such letter ana the sarYae
competent proof as against these
respondents to having been written
while Shuraway was in the plaintiffs
employ under the agency contract.
Such letter is somewhat ambiguous as
to the amount of the indebtedness adj
n1itted, but the same lis interpreted az
an admission that there was duesSrcrl
ShuImWay to- the company on that date
such letter Was written, og the sam 81
S159. and If will be presumed in the
absence of ~ proof to- the contrary
that such indebtedness continued
down To- the termination OF the agency
contract and also at the time OF the
commencement of this action. he
PENDANTS having offered no evidence No
rebut such presumption 1t is held that
lthe trial court should have ordered
Judgment for said sum with interest.
(SyIlabus by the court
Appeal from district court, Ramsey
icounty; John Fs. Cowarl, i.
ii Judgment In defandaTtta'
favor diminishing the action pIaintifg
appeals.
Reversed with directions.
Murphy &Duggan, Grand F0rks. N.
~ for appellant; McGlory. DeYY
Ills Lake, ~. d. and Miller 81 Xuger.
Bisnarcks AZ. D., for respondent
Opinion af the court BIZ Fisk,
Arthur Ness, pIaintin ana respona-