The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1913-01-20
Decisions Of the Supreme Court

Held, that 1t was prejudicial error to
ADMIT in evidence numerous letters
written to plaintiff by defendant long
after the contract was entered into,
which letters contained merely self
serving declarations as to plaintiffs
version of the transaction.
IS. PLAINTIFFS son was permitted,
over defendants objection, to testify as
to his understanding regarding the
terms of the contract.
Held, prejudicial error.
tSyIlabus by the court0
Appeal from district court, Griggg
county; Goss, special judge.
FROM a Judgment in plaintiffs favor,
and from an order denying a motion
for a new trial. defendant appeals.
Reversed and new trial ordered.
Ball, Watson, Young & Lawrence.
Of Fargo, n. d. for appellant. w. c..
Resser OF Fargo, N. D., for respondent.
Mas Christofferson. plaintiff and re-
spondent. VS.. Ole T. wee, defendant
and appellant.
!. When a pleading is only attacked
by motion OF objection to the introduce
ton OF evidence on the trial it will be
construed mor literally in favor Of
the pleaaer than when the attack is
made by demurrer.
~ - Ol[A uoOog INs Isa-. l3U6.H A DEOVlQSS
that an answer may contain a state
ment of any new matter constituting a
defense or c~ounterclaim; and Sec. $3.50,
r. c. 1905. requires that such counter
claim TO be existing in favor OF a
defendant and against a plaintiff be-
tween whom a several judgment might
be had in the action. and arising out OF
n of h following causes of action:
I'd "A aus OF action arising out OF
the contra Of np frnpro offon saf Fow&A -
the complaint as the foundation OF the
plaintiffs claim or connected with the
subject Of the action.
CD In an action arising on contract.
n other cause OF action arising also
on contract and existing at the COM
mencement Of the action.
Held, that in an action on promis-
sorry notes given on a conditional sale
Of real estate for the purchase price, a
counterclaim attempted to be pleaded
by the defendant, setting IN the con-
ditions or which defendant claimed the
sale was made. which, IL true, rendered
the notes in suit in hands Of the payee
yoidable, such. counterclaim comes
within paragraph No. / Of Sec. $500,
supra and "a II does not follow that
the acts set up in the countercIaim
must have been done or contracted to
be done before the commencement of
h action and that said paragraph 1
applies to what was formerly termed a
recoupment.
8. A mere missioner in designating
q pleading as an amended pleading in
stead Of a supplemental pleading has
no effect where the substantial rights
of the parties are not affected therebv.
and an additional pleading may be
treated as supplemental, even though
designated as an amended pleading.
This is particularly so where the
amended pleading was served BY per-
mission Of the court and was received
and retained without objection by the
other party.
4. Where a pleading states the
main facts necessary to constitute a
cause of action but onnits to state some
details and is thereby rendered. to
some extent, uncertain, the remedy OF
the other party is by motion to make
more definite and certain or a demand
for a bill of particulars, and when he
does not avail himself Of either OF
these remedies for more than ten
months after the service of the plead
ing or until a motion for judgment for
lack Of q reply, his right to object on
grounds going to the incompleteness
Of the pleading is waived.
s.. The objection that facts pleaded
in an answer Intended to set up a
counterclaim do not constitute q prop-
ct cOuuLStcIAlm IN the action can only
be raised by demurrer, where the sub
ject matter properly pleaded might
have constituted a valid countercIaim.
6. An order denying a motion for
Judgment on the pleadnigS is review
able on appeal from the Judgment.
4. Under Sec. 1868, II. G. 1905, pro-
viding that every material allegation
contained in a cOunterclaim not con-
troverted 10y reply shall, for the pur-
pose OF the action. be taken as true:
and Sec. 6264. authorizing the de-
PENDANT to move, on notice OF not
less than ten days, for such Judgment
as he is entitled TO upon the state
mentg OF his counterclaim in case thel
plaintiff fails to reply or denlur
thereto,
1T is held, that under the facts III
this case as set out In the opinion
and as against any objection offered
by plaintiff when motion for iudg-
ment was made for lack of Il reply the
defendant WAS entitled to judgment
upon his counterclain.
(SylIabus of the court.1
Appeal from Judgment OF the district
court Of Ramsey county. Allen. II.
Reversed.
Pierce. Tenneson b CupIer Fargo,
for appellant.
A. g, Lacy, Fargo. for respondent
Opinion by Spalding, c. ].
Al New York digsne despairs because
ministers are paid Tess than xabcrers.
Hut Iahorers are in greater demand