The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1917-01-24

prices of such goods. but were ex-
cessive and more than the usual
wholesale prices, then the written
contract would be voidable as to the
defendant"
Cd Even though a contract con-
tains provision that this contract
contains all the conditions and agree
ments between the parties. and the
purchaser hereby acknowledges a re-
ceipt. of a duplicate hereof" and the
contract as signed contains no refer
ence to the general wholesale price Of
the articles sold, defense may yet
be interposed in a suit upon the con-
tract based upon fraud and deceit in
obtaining the execution of the same
by a false representation as to such
wholesale price. Such defense does
not seek to vary the terms OF the con-
tract but merely to show fraud in its
inception.
Action to recover the purchase price
of merchandise.
Appeal from the district court of
Richland county, Frank P. Allen, ].
Judgment for Defendant. Plaintiff
appeals.
Affirmed. Opinion of the court by
Bruce, G. J.
Purcell, Divet & Perkins. Of wah-
peton. attorneys for plaintiff and ap-
pellant.
J. A. Dwyer of Hankinson and
Wolfe e. Schneider. of Wahpeton, at
torneys for defendant and respondent.
From Eddy County ...-.
The State of North Dakota, plaintiff
and respondent, VS.. James Riordan,
defendant and appellant.
Syllabus: Criminal Law-Courts-
Instruction.
1. Certain instructions examined
and held to be prejudicial.
2. Where court gives an instruc-
ton to the jury on q point of vital
Importance to the defendant, in a
as to such point considers that point
alone, and does not include considera-
ton Of the whole case and all the
testimony of the case in connection
with such instruction, 1t is held to be
prejudicial error.
From an order denying motion for
a new trial. Appeal from the district
court of Eddy county. Hon. c. w.
ButtZ, ]. Defendant appeals.
Reversed. Opinion Of the court by
Grace. j., Robinson. J.. dissenting.
r. F. Tinker and Orville w. Duell,
New Rockford, n. D., attorneys for
plaintiff and respondent.
N. J. Bothne, New Rockford, N. D.,
attorney for defendant and appellant.
From Dickey County.
John Kupfer and Harland Kupfer,
plaintiffs and appellants. vs.. James
McConville, defendant and respondent.
Syllabus:
/. Contract - Non performance -
Recovery. Where one makes a con-
tract with another to perform certain
work at a stated contract price, and
fails to perform or carry out his part
of the contract and perform precedent
conditions incumbent on him to per-
form, no recovery can be had on such
contract for the contract price by rea-
son Of such non performance.
2. Mechanics Lien.
Where q mechanics lien is claimed
by reason Of the alleged performance
Of a certain contract and 1t Is found
there was no performance OF such
contract such mechanics lien never
attached or became a lien and there
fore there is no lien upon which fore
closure can be had
Appeal from a judgment of the dis
trict court Of Dickey county. Hon.
Frank P. Allen, J. Plaintiffs appeal.
Affirmed. Opinion Of the court by
Grace, J.
F. ]. Graham and E. E. cassels, Ell
lendale, attorneys fo9 plaintiffs and
appellants.
w. s. Lauder. Wahpeton. attorney
for defendant and respondent.