The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1913-02-07

In the supreme court, October term,
1912. John Huffman, respondent VS..
E. N. Bosworth, ct al, appellants. ...
l. In an action to recover damages
for negligently setting a prairie fire
which destroyed plaintiffs grain, the
testimony of one G.. an insurance
agent, to the effect that one w, a
stranger to the suit. caused such grain
to be insured in his name and that aft
er the fire he collected the insurance
thereon, all of which facts took place
without plaintiffs knowledge OF con-
sent, was inadmissible and properly
excluded.
2. Instructions defining negligence
and ordinary care, examined and held
on-prejudiciaL. ss@ ..: .
3. Certain instructions were inn
properly given relative to a matter re-
garding which there was no basis in
such instructions could not have mis-
led the jury and were non-prejudicial.
(Syllabus by the court.)
Appeal from district court of Nor
ton county, Crawford, special judge.
From a Judgment in plaintiffs favor
and from an order denying a motion
for a new trial. defendants appeal.
Affirmed, Opinion by Fisk. ].
w, H. Stutsman for appellant.
B. w. Shaw for respondent, .
J.. e. Morgan and L A. Smith, plain
tins and respondents. VS.. F. A. Russell,
defendant and appellant.
In an action for specific performance
Of a contract created by the written
acceptance Of a written option to pur-
chase granted plaintiffs by an owner
of lands, of which owner defendant
procured title with full knowledge OF
the outstanding and u~naccepted but
not expired i~rrevocable option, it is
hald:
1. That defendants rights are sub
ject to those of plaintiffs arising from
their acceptance within the option
period of the option granted them.
2, That specific performance may
be maintained against defendant as 1t
could have been against his grantor,
the former owner OF the land.
8. The option and the acceptance
are set forth and construed, and it te
held that the written acceptance con-
stituted an unconditional and unquali-
fed acceptance Of h option in accord
with its terms. ,,
4. That the option stipulated the
manner Of acceptance and h period
of time within which acceptance
might be made; also it embodied pro-
visions as to performance n time oil
performance to be allowed the parties
after acceptance of the option to pur-
chase. AS to this it is held:
(a) That tins within which the q
ceptance was to be made was Of thu
essence of the contract; but that time
within which the contract was to be
performed after acceptance, not being
| clearly and beyond question stipulated
to be Of the essence, of h contract, Q
performance attempted by q tender o1
payment by the purchaser, three days
after the expiration Of said time slip
ulated, is within time and valid IL
equity:
OBJ Definite and unconditional &C.
ceptance in accordance with the man,
ner and terms stipulated in the
option is not avoided or rendered
uncertain or unconditional by mat.
ter contained in the acceptance
concerning the method Of performance
or where payment should be made o.
by a demand for an abstract for which
the sellers under the terms OF the op;
ton were not obligated to furnish
where the unconditional acceptance Il
not qualified or made conditional upoI
compliance with such requests or de.
mands concerning performances.
(c) Acceptance and SUBSEQUENT per,
Torrance are different matters; ant
where the acceptance Is u~nconditlona
suggestions or demands as to perform
ance not qualifying or rendering tn
acceptance conditional upon corapli'
ance with such demands VIII noe In
validate such acceptance.
(d) Such an unqualified and UNI
conditional acceptance creates a CON