The Bismarck tribune. [volume] (Bismarck, N.D.) 1916-current, 1917-01-18
SUPREME COURT
FROM BENSON COUNTY.

eHVm OeNSON VOONtV.
First International Bank OF Esmond
N. D.. Plaintiff and Respondent;
vs..
George H. Davidson and William
Bratthwait, Defendants and APPEL
lants.
Syllabus: ~ Where an answer
fairly, ,apprises 4 plaintiff that a Ger
tain defense will be made, and upon
the trial another defense IS mainly
relied! ppon, which plaintiff is unable
to meet, the circumstances warrant
the trial court in holding that plain
TIL is taken by SURPRISE.
10 The newly discovered evidence
presented AZ 4 ground for new trial
maybe that Of witnesses who werd
present in court.
fG(S) icThis court Is reluctant to re-
verse orders granting new trials aTl
Will only do so where abuse OF dis
cretion2 is clearly shown. :. a: !,
(4) Record examined and held that
abuse OF discretion is not shown
Appeal from the district court Of
Benson county; C. w. Butte. J.
Affirmed. Opinion Of the court By
Birdzell, J.
Asa J. Styles, OF Esmond, attorney
TOR defendants and appellants.
! Torger Sinness, and Clyde Duffy, Of
Minnewaukan, attorneys for plaintiff
and respondent.
FROM RANSOM COUNTY.
J. N. McKindley and Citizens Bank Of
Lisbon, NJ, OAK, Corporation,
Plaintiffs and Respondents;
Citizens State Bank Of Edgeley, N.
OAK, a Corporation. Defendant and
Syllabus: az: The me.sure o,
damages for the conversion d an exc.
cutory contract for the sab Of land is
the amount which will compensate the
owner for all detriment approximate.
" caused thereby: :. i. - !.
(2) Section 71SO, Compiled Laws,
which provides that the value Of a
written instrument. is presumed to be
that of the property to which 1t en-
titles the owner, has no application
to e1ecutosS contracts for the sale Of
land. n EsA& - g
From a judgment of the district
court of Ransom county; Allen, J. De.
appeals.
Reversed. Opinion of the Court by
j.
L:wrence & Murphy, Of Fargo, for
r y =
Curtis & Curtis, OF Lisbon, (Stearns
& Hunter, Of Duluth, Mipp.,s IT coun.
scl), for respondent.
FROM WELLS COUNTY.
A.. b. Holbert, Plaintiff and Appel.
W. F. Weber, Defendant and Respond
ent. i.
Syllabus: az An agreement by an
agent that TIA horse does not recover !
from 4 defect be will allow, the vendee
10 purchase another, horse and pay
Tho difference between the second Snd
The first animal, and in such event
viii have returned to him the notes
1NSI 6IvCns 10 WkuA Su0 AMP1OO 0V
!hority OF such agent, and viii be
binding upon his principal in the .1b-
,ence of q limitation on such author
ty which is known to the, purchaser
az The vendor Of personal proper
y implicitly warrants the quality and
quantity OF the articles sold. s2. ..$l
i3l The word; quality, when used
n I warranty and in section 63l4 Of
he Compiled Laws of 1913, imports
sliitab leness, and IT.
fess for the purpose specified" &nd
n the case of q horse adaptiveness
md suitableness for the general .purs
Iose for which horses are purchased.
:(4) When special contract is On.
cred into for the 81 G and delivery OF
property a SUBSTANTIAL per.
by the vendor is condition
to- his right Of action
gatnst the vendee for the purchase
rice. j.
(5y All instruction Vas mot effone.
"a which, il i suit OH = promissory
letc, charged that 1.-THE burden is on