Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1913-06-07
Supreme Court

In the supreme Court, state OF Norm
Dakota, April, 1913, Term.
Joseph Duffy, Appellant, VS.. A. Eye
land, Charles A. Eallinger and The
First National Bank Of Bisbee, a
Corporation, Respondents.
Defendant B. sold certain land to
plaintiff on the crop contract plan.
Plaintiff assigned his contract to the
defendant bank as security for a $500
loan. Defendant B sold the land to
Defendant f subject TO the said con;
tract. E. served notice of forfeiture
for failure to deliver one-half OF the
crops and to pay the taxes according
to said contract. Plaintiff brings this
action for specific performance, alleg-
ing that he has paid both the bank and
defendant E. all that he owes them.
Held
/. That an examination of the evil
dence shows that certain credits due
to plaintiff from Defendant B.. were
applied by agreement OF parties upon
other Indebtedness, and that plaintiff
has paid upon this contract only the
sum of 5000. Further found, that he
had failed to deliver any part of the
crop of 1908 and had failed to pay the
1907 and 1903 taxes upon the land.
Under those circumstances he was in
default.
2. Defendant B. had repeatedly urg-
ed plaintiff to deliver the half of said
crop but the plaintiff had through
promises and excuse managed to de-
lay the actual delivery of the grain
until the following spring. at which
time notice of cancellation of the o n
tract was served. After the service
of said notice plaintiff did nothing to
relieve the default for thirty days or
at all, and has never deposited any
sum whatever to w said indebted
ness. Held, that under the circum-
stances Of this case, defendants have
not as a matter of law waived their
right to cancel the contract.
(Syllabus by the Court.)
Appealed from the District Court Of
Rolette County, Cowan, ]. -.
Affirmed
NJ. "a. 'Hildreth, Fargo, N. D., Attor-
ney for Appellant.
H. Z. Plymat, Rolla, N. D., and p.
r. Cuthbert and A. R. Smythe, of Dew
lis Lake, N. d., attorneys for respond
ents. q
Opinion of the Court by Burke, J..
In the Supreme Court, State of
North Dakota, April Term, 1913.
Eliza Willoughby, Respondent, vs..
II. Delafield Smith, Appellant.
Wilson Willoughby, Respondent, VS..
2. Delaield Smith, Appellant.
Dan Willoughby, Respondent, VS..
+. Delafield Smith, Appellant.
Dan and Wilson Willoughby. Re-
spdndents, vs.. u. Delafield Smith, APP
pellant.
sls2 Four distinc. actions in claim
and delivery brought by different par
ties and involving different issues.
although against the same defendant,
cannot properly be consolidated, un
der the provisions Of Sec. 7345 R. G..
1908. either for the purposes of trial
in the district court or for the pur-
poses of an appeal to this court, even
though they involve similar questions
Of law and fact.
2. Where such consolidation is Or
dered, however, by the express or i'm
piled consent of counsel, they will not
be heard to urge an objection there
to; 0 will they be heard on an ap-
peal to the supreme court to urge
any objection on such ground where
no prejudice is shown to the party
thurs objecting. -
g.. Assignments of error based up
on rulings in the admission and ex-
%clusion of testimony viii not be sus-
tanned where from the whole record
1t is manifest that no prejudicial err
ror was committed.
l.. Numerous rulings in the admis-
sion and exclusion of testimony ex-
amined and held non.prejudicial.