The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1914-02-04
DECISIONS OF THE
SUPREME COURT

In the supreme court, state of North
Dakota.
Wilson o, McCurdy, plaintiff and re-
spondent, VS.. Laura M. Boring and
Joseph NJ. Williams, defendants and
appellants. : + ;
S.--aIn an action to have a deed de-
a near relative or otherwise under a
family or social obligation, renders
valuable services at the instance and
request of another, the presumption
VIII arise of an agreement to pay the
reasonable value of such services.
Where, therefore, one leaves with an
other his horses and instructs such
other to sell them as best he can. a
presumption will arise that the latter
was intended to be compensated for
such services.
z. Where a person is authorized to
sell the horses Of another and to take
bankable notes therefor, and sells such
horses in conjunction with his own,
taking notes therefor covering sales
which include the horses of both per-
sons, he will not be allowed to dictate
as to the division of the notes on an
accounting, but a court Of equity will
divide them as appears to it proper
and just.
3. In anaction to have a deed de-
clared a mortgage and for an account
ing, and in which the answer admits
that the deed is a mortgage n mere
~ asks the court to determine the
amount due thereon and on such &C
counting, NJ attorneys fees for the
foreclosure Of such mortgage will be
allowed, as such answer does not con-
stltute AN action or proceeding for
the foreclosure of a mortgage as the
term is used in section 7176,R. c. 1906.
A.. Evidence reviewed, and findings
of the trial court as to items of ac-
counting modified.
(Syllabus by the court).
Appeal from the district court Of
Stutsman county, Burke, j.
Action to quiet title. to have the deed
declared a mortgage and for an ac-
counting. Findings and judgment for
plaintiff and respondent.
Modified. Opinion of the court by
Bruce j, Burke, j.. being disqualified,
not participating.
attorneys for defendant and appollan
Joseph M. Williams.
X. 6. Mcfarland, Jamestown, ". D.,
attorney for plaintiff and respondent.
Albert Gressens. plaintiff and re-
spondent, VS.. A. Martin, defendant and
appellant.
L. In the absence of express con-
stitutional or statutory provision there
is no right to a jury trial in suits in
equity. 1t has always been the prov
ince of the courts of equity to deter
mine issues of fact as well as of law,
and while the court may suom::t aues-
tons of fact to, a jury, this is purely
a matter of discretion and the verdict
in such cases is purely advisory.
2. This is also the rule under sec
ton zoos, r. C. 1906, which provides
that: An issue of law must be tried
by the court or by the judge. An is
sue of fact in an action for the re-
covery of money only or Of specific
real or personal property must be tried
by a jury, unless a jury trial is waiv-
ed as provided in section 7o3S. or a
reference is ordered as provided in
section 7046 and 7O47. Every other is
sue is triable by the court, which, how
ever, may order the whole issue or any
specific question of fact involved
therein to be tried by a jury or by a
referee as provided in sections 7046
and 7047."
8. Whether an action is legal or
equitable depends upon the nature of
such action at it's inception, and where
such action as originally instituted
seeks equitable relief alone the inter-
position of a legal defense does not
secure for the defendant a right to a
trial by jury Of the legal defenses
pleaded.
(Syllabus by the court)
Appeal from the district court of
Rolette county, Cowan, 3.
Action to forec1ose chattel mort
gage. Judgment for plaintiff, defend
ant appeals.
Affirmed. Opinion of the court by
Bruce, j.
VIM. Bateson. Rolla, N. ~, attorney
for defendant and appellant.
Flynn 81 Traynor, Devils Lake NJ
d., attorneys for plaintiff and respond
ent.
according to- French scientist oys-
tiers can be kept for two week. In
uttered water without injury or loss 81
yRei CHIT.