Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1915-11-09
SUPREME COURT
FROM MeHENRY COUNTY.
The Fidelity and Deposit Company o
Maryland, a Corporation, Plaintiff
and Appellant.

respondent.
Syllabus:
/. In an action brought to recover
money paid to the defendants employ
er upon a bond by which the plaintiff
obligated itself to indemnify the en-
ployer against such loss as it might
sustain by reason of the larceny or
elnbezzlement Of the employers prop
erty by the defendant AZ it's manager
or salesman, in the sale of machinery.
Held, that the evidence justified the
trial court in finding that there was
no larceny or embezzlement for which
the plaintiff was liable to the employ
e. on the bond. ~
2. Held, further, that a stipulation
between a~%"guaranty insurance COM
pany" and the guaranteed employee
that a voucher or other evidence of
payment by the company to the en-
ployer shall be conclusive evidence
against the employee as to the fact
and extent of his liability to the COM
pany, is void, as being against public
policy in SO far as it makes such YOU
cher, conclusive evidence.
3. Held, further, that assuming that
such voucher established a prima
facie liability of the defendant, that
the other testimony introduced by the
plaintiff as to the facts of the alleged
default of the defendant rebuts the
prima facie showing.
appeal from the District Court, Nc.
Henry county; A. 6. Burr, Judge
Action by The Fidelity and Deposit
company Of Maryland and against OH
YER G. Nordmarken. Directed verdict
| for. the defendant and from an order
| refusing a new trial, plaintiff appeals.
Affirmed. Opinion of, the Court by
Eanley, District Judge ,Goss and
| christensen, j., disqualified, did not
sit, Hanley, District judge, sitting by,
request.
of Devils Lake, for appellant.
&C. w. HookWay of Granville for res.
sFRoM WHO COUNTY cociUR,T.
A. c. Harris, Plaintiff and Respond
ent; .~nx VS.. fty. Y; 4 5 3
Ed Hessin, Defendant and Appellant.
The refusal. of the trial court to va.
cate a dsfanit and permit a. trial on
1.-THE merft8Ninder the facts stated in
!. the opinion, was an abuse Of discre.
.Fstion. 8 !
An appeal from the County Court Of
Increased jurisdiction of Ward county,
Murray, Judge. t.s3
Reversed. Opinion Of the Court by
1Goss, j.. Christianson, J., disqualified,
did not participate.
Paul Campbell Of Rugby, and H. S.
Kline og Havre, Mont, attorneys for
defendant and appellant.
P~alds,aAaker & Greene and I. M.
Oseth of Minot, attorneys for plaintiff
and respondent.
,~a>. FROM WARD COUNTY.
Edward w. Emery, Plaintiff and Ap:
pellant, VS..
First National Bank of Bowbells and
A. C. Wiper, Defendants and res
pondents. sl"u
Syllabus: .
/, Where in a suit in equity to sci
aside a conveyance of land jury is
requested and certain issues are sub
mitted to 1T for determination, the
provisions sof Section 7846 Of the Com
piled Laws Of 1913, being the so.called
Newman Act, do not apply, and upor
: appeal the Supreme Court will moi
; try the case anew but will sit as
. court Of review for the correction Of
errors merely.
, 2. Where in a suit in equity to SCI
aside a conveyance Of land a jury il
requested and certain issues are sub
:, mitted to it for determination, the yer
I dict ofethe jury, though advisory mere
ly and not binding upon the tria
, court, is" entitled to receive grave con
sideratiol at the hands of such cour
and it will be error to refuse to re
) ceive the same and to make finding
of fact and conclusions of law in tn
} absence of such verdict unless it ap
; pears from, the cor that if the jur,
; had found contrary to the findings o
) the trial judge their verdict woul'
5 have been clearly wrong. In the cas-
/ at bar .sucfiis found to be the case.
} 8. In order to set aside a deed o.
< the ground of undue influence tn
proof must be clear and convincing.
4. The criterion as to what is o
/ what is not a confidential Relationship
l is whether the relations existing be
tween the contracting parties are Q
such a character as to render it Gel
t tain that they do not deal an equa
{ terms but that either on the one side
,, from q superior knoledge of the ma
: ter derived from a fiduciary relation
| or from 0vermastering influence, o, o
the other side, from weakness, d.
tendance or trust justifiably reposeG
r unfair, advantage in a transaction i
rendered. probable.
> S. Where a confidential relation
F. ship is established between parties i
Z an action to set aside a deed on thi
). account, the transaction is presume
to be void and the burden is shifte
on the. party to whom the confidenc
: is reposed and who occupies a fidr
ciary position to show aftirmativel
that no deception was used and tina
!, all was fair, open, voluntary and We
! understoeds
! 6. Evidence examined and no proc
/. of a confidential relationship held t
!; exist, but rather that of a banke
. dealing with one to whom the ban
has advanced money, and one whic
Is hostile rather than confidential.
Z. The mere fact that n is nel