Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1915-02-04
Supreme Court
/. FROM WILLIAMS COUNTY.

~ FROM WILLIAMS COUNTY.
John fbruegger, as Trustees Of the
Bruegger Mercantile Company
Plaintiff and Respondent, $50
Wa VS..
Joseph Cartier. Defendant and Appel
liant. w &"E ~
Plaintiff contracted to give GOOD
title TO a tract of'land which he had
previously purchased from the Grea,
Northern Railway company, under :
deed containing, the foiiow:ng reses
vatioa: HReserving, however, to the
st. Paul, minneapolis. 81 Manitoba
hallway Company, its successors 4o1
assigns, for right of way or other rail-
road purpcses, a strip Of land one
hundred fifty feet WIDE, from the
above granted premises where the
lines Of ITS road Or any OF its Abranc:;'
-es, or the line Of any other rallroaIi
or tina branches thereof, now owned
or operated, or. which may hereafter
be owned or operated by 1t, is nos
located and. constructed, or may here,
after he Located and constructed.
When plaintiff; rendered a, deed to the
premises objection was made to his
title upon the grounds that, it was
junmarketaol Die by reason Of the fore
going reservation. The balance OF
the purchase price was, however, de-
posted in d reputable bank; pay&ole
to the ordsr ,of. the plaintiff when ne
should be able to give a proper title
t. the tract. hi ~
/, "a. Defendant was not, Obliged -
accept the title offered; even though
it might prove ultimately to be good,
but. he was justified in demanding q
title not only good in fact, but one
that was good beyond a. reasonab:..
doubt. Such reasonable doubt Is oae
that would cause hesitation in the ju;-
dicial mind before deciding 1t.
t2) A clause in the contract where
by d0fendant, agreed that he has en-.
tered. upon the above written CONTRACT
relying on his own knowledge of sue:
premises. and not upon any repre-
sentaticns made by the party Of tina
first part, or by any other persons
touching the situation, character or
quality thereof, does, not mean that
the defendant assumed the risk Of, ii.
tie = NJ - - a.
t3): Plaintiff: brings. this action III
equity to enforce, a forfeiture of the
contract for non-payment of. the bal.
ance of the purchase: price, which was
in the bank as aforesaid.
U1der the evidence, it Is held, tina:
such deposit was sufficient that no
grounds Of forfeiture existed and tina,
defendant is entitled to the relief DC
manded in, his counterclalm. II
Syllabus 81 Tie Court.
Appealed from the District Vour:
OF. Williams County, Leighton, Spe.
ciali Judge.
Reversed. Opinion OF the. Court 10y
H., Goss. j., being disqualified,
did not participate, Hon. j. M. Han
ley, Judge Sof. the District Court OF
the Twelfth Judicial D;siyict, sittin5
In his stead.
George A. Gilmore, Esq, Of Willis.
ton, N. T.. and F..'B., Lambert, Esq.
Minot, N. D., Attorneys for Defend
ant aid Appellant, !. -
George Il. MODELLING, Esq, Of Ray,
", D., and D. C.. Greenleaf, Esq, OF
N. D. lJolin, Carm6dy, ESD, OF
N. D., Of counsel), >Attol-
neys for Plaintiff and Respondent.
FROM WALSH COUNTY.
Amadas French; flaintiff and Respond
"ent,, f@E %s'1' 'a'''
- rs. '''9"a :" '''
state Farmers Mutual Hail Insurance
( Company, Defendant and Appel,
liant. '.... r. ',s air +
ny The: allowance of amendments
rests largely within the sound discte-
tion Of the trial. Court.
~ Where &c clearly appears that
the defendant was not misled,, sur
.priseu, or In. any way prejudiceds from
maintaining his defense upon the
merits, an amendment Of the COM
plant . conform. to the facts proved
should be allowed: N-t5s
.a(3J The objection that there is :
missioner 81 Causes 81 action, or tina:
a cause is Of equitable, an: not Of &c
gal cognizante,, catlnot be raised. TO-:
the first time on appeal. '''&
'(4)%"Ai, insurance contract may be
reformed and a recovery thereon en-
forced in the same action, ~
lM(5)" Agents for TN insurance com
parry authorized to procure applica.
for insurance. and to forward
them to the @comparysfDr, acceptance,
are deemed the agents Of the Insurers
If, all that they do in preparing the
application. Hence. when such agent
out an. application, Incorrectly,
Notwithstanding the facts are truth
fully. stated to him by the. applicant,
sueh error IL ,chargeabLe, to the IL
surer, and not to the insured. '%H
.s6l;tA !misdescription Of the land on
which crops: Insured against hail. are
growing; will not of ltselr. prevent !.
rhcorerjy in case OF, loss. And where
such misdescrtption is due solely 10
the error Of the agent of the insur-
.ance. Company Id preparing the apps.
cation for suclI insurance, it is not
necessary to bring an action in equity
to reform the policy, but the Insured.
may. by setting for the facts relat-
ing to the mistake in his, complaint,
an action at law thereon in the
tirst instance. " +,
Syllabus BY The Court. .
From q Judgment of the District
Of Walsh County, Kneeshaw,
Judge. Defendant appeals. Atnrm-
ed. - ~
Opinion of the Court ny Christian
son. J..
n. X. Turner. Fargo. N. D.. Attor.
new for Defendant and Appellant.
III. u. DePuy. Grafton. N. D.. Attor-
iney for. Plaintiff and Respondent.