The Bismarck tribune. [volume] (Bismarck, N.D.) 1916-current, 1917-04-04


T. H. Burke, states attorney or
Minnewaukon, N. D., (now of Hardin,
Mont.), E. T. Burke, Bismarck, and
VIM. LANCER, attorney general, and
D. V. Brennan, assistant attorney
general, attorneys for respondent.
FROM WELLS COUNTY.
Crane & Ordway Company, a Corpor-
alton, Appellant,
VS.. r
Sykeston School District No. II, a
| Municipal Subdivision of the Coun-
ty OF Wells and State of North ia
kota, Respondent. n
Syllabus: "a Where a contractor
induces a board CK directors of a
school district to issue a district war
rant by making false representations
as to the payment for materials used
in the performance of a contract be.
tween such contractor and the dis
trict. the transaction may be rescind-
ed and the contractor required to
surrender the warrant for cancela-
ton.
90 The right of rescission where
consent is induced by fraud or by
false representation does not depend
upon damage to the party imposed
upon.
CD Under Section 1896 of the Com.
piled Laws of 1913, which provides
that lin the case OF an assignment
of a thing in action the action by
the assignee shall be without preju-
dice to any set.of or other Defense
the right to rescind transaction
for fraud exists against beneficiary
or an assignee as we'll as against an
immediate party to the transaction.
(4) Section 6s32 Of the Compiled
Laws of 1918, requiring public officers
to take bonds from contractors be-
fore entering into contracts with
them, is, as to time, directory merely
and the contractor is under obliga-
ton to recover his compensation.
60 Section 1892 Of the Compiled
Laws of 1913, requiring that bonds
be taken for the performance OF con-
tracts for certain public works to Sc
cure material men and labOrers and
making officers neglecting to comply
Herewith personally liable to materi-
al men and laborers, is not to be con-
strued as making the original con-
tract the individual contract OF such
officers, but rather as making the off,
GERS involuntary sureties of the con-
tractors obligations to third parties.
(6) The fact that the members OF
school board have disbursed school
funds in payment of individual judg-
ments obtained against them for ma
terials supplied to the district war
rant which had been obtained by
fraud.
Appeal from the District Court of
Wells County, Coffey, ].
Affirmed.
Opinion of the Court by BirdZell,
John O. Hanchett. Fargo, Attorney
for Respondent. %'.''
From Ward County
The State of North Dakota, Plaintiff
and Respondent. '''''H' ~
Ward McCrill Defendant and Appel
liant.
SYLLABUS: 1. In a criminal az.
ton Cor keeping and maintaining a
common nuisance contrary to the pro-
visions Of the prohibition law Of this
state, the improper admission in
evidence of certain search warrant
under and by virtue of which the de-
| PENDANTS premises were searched is
not prejudicial error, where defend
ants guilt is established by other pos.
tive, uncontradicted testimony to
such a degree of certainty that the
| INV 49, l. io%
for the defendant without wilfully dis
regarding it's duty
,. In such cases the improper ad-
mission in evidence Of the officers re-
turn on such search warrant is not
prejudicial error, where the officer Isl
placed upon the stand as witness
and examined and cross-eXamined full.
ly with respect to the matters refer
red to in his return.
Appeal from the County Court of
Ward Couty, Murray, J..
Defendant was convicted of keeping
and maintaining common nuisance,
contrary 20 the provisions Of the pro.
hibition law, and appeals from the
judgment of conviction and from the
order DENYING a new trial.
Affirmed. Opinion of the Court by
Christensen, j. ".H o. b. -.
Robinson, j., concurs specially.
Gresnleaf, Wooledge & Lesk, of MI
hot, Attorneys for Appellant.
y. T.. Herigstad, States Attorney
and Dorr Carroll, and R. A. Nestos,
Assistants States Attorney and VIM.
LANCER, Attorney General. and D. v:
Brennan, Assistant Attorney General,
for Respondent.