The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1917-05-05
SATURDAY EVENING LETTER
BY Justice ]. e. ROBINSON.

covered and this action was COM
rnenced on the bond The complaint
was duly verified and. it was based on
lundeniable facts appearing OF record.
The answer was a general denial. 1t
was stricken out by Judge Burr as
sham and on appeal to this court
Judge Kneeshaw wrote an opinion re-
versine the order holding in effect,
that a general denial of the court rec
ords may not be stricken out as sham
and not made in good faith. Gao N.
i ID 42I.1 I'm June 1915, the case was
on the court calendar for trial and q
motion was made to strike 1t from the
calendar A motion was made TO re-
quire the plaintiffs to come to the
state and submit to examination as
parties before trial, claiming that the
defendants had a good ana Tueritorl-
Gus defense in a matter relating TO
/ the validity and good faith OF the pre-
tended assignment of the judgment,
as IL the defendants were in any po-
sition to question the Sufnciency or the
assignment. On July 8. 1915. the case
was brought to trial before the court
and jury and at the close OF the
testimony each party moved for d sdi-
rect verdict and the case was submit
/ ted to the court. Then the court. by
Judge Burr. made and filed proper
/ findings of fact and conclusions OF
law. On July 10, 1915, Judgment was
duly entered in favor of the plaintiff
and against the defendants for ST.
1854 and costs. In October, 1915. the
defendant again appealed to this court
and on January q. 1915, the appeal
record was filed.
| There is no specification OF error
worthy OF consideration. The proof
submitted by the plaintiff was not
disputed and it was in no way dis
putable. The defendants had no de-
Tense and they did not attempt to
make a defense. The appeal was in
keeping with the answer and 1t was
taken in bad faith and for delay. In
that way this very simple action has
been held up and delayed for seven
years. Such a procedure should not
be tolerated. The judgment should be
affirmed. with ten per cent damages
and costs.
April 10. 1917.
Ruddick W.. Buchanan q Sens.
| Robinson. j.. In this case the plain
tiff sues to recover $3.50 for meats
| and groceries sold and delivered to
the defendants. at their request The
plaintiff claims under q written a..
| signment made to him by Miller a
/ Posey. The answer is q general de-
NAL. The defense was that the goods
In question were sold to one Bowman
and that the sale was not for and at
the request of the defendants. The
plaintiff appeals from q Judgment and
order denying new trial. There was
no fair question on the sufficiency OF
the assignment or the correctness Of
the account. The goods were delivered
to Bowman as necessary supplies to
run threshing machine in the OPP
Grafton of which Bowman and the de-
PENDANTS were jointly interested As
| it seems. Bowman was competent to
run q threshing machine. but he had
no means to buy q machine or TO OPP
erate 1t. The defendants owned q
| threshing machine and arranged with
Bowman to run IT.. They sold the
| machine to him. taking back a chatteI
mortgage for the full amount OF the
purchase money, as he had no means
to buy or to operate machine. The
agreement was that the defendants
should pay the expense OF operating
the machine and receive nearly all Its
earnings. It was q joint venture in
which Bowman and the DESCENDANTS
were in reality partners. and they
were to receive the greater part Of
the. profits. Hence, regardless OF any
special promise they might well be
| held for the meats and groceries neceS-
sary to operate the machine. And the
evidence does fairly show that the de-
PENDANTS specially promised and
agreed to pay the. expense. and on the
| faith OF the agreement Miller q Posey
parted with their meats and grocer
les. The fact that the defendants sold
the machine to Bowman and took back
mortgage for the purchase money,
agreeing with him to operate the ma.
chine for their mutual benefit. does
not relieve the defendants Of response
bility. He who takes the benefit must
bear the burden. The law respects
form less than substance. There was
not a fair trial. The Judgment is re-
lversed and a new trial granted.
April 26. 1917.