The Bismarck tribune. [volume] (Bismarck, N.D.) 1916-current, 1923-08-15
DECISIONS OF SUPREME COURT
From. Williams County

| 0soA>o VT SOi NEME COUKl
From Williams County
First National Bank of Williston
a corporation, Plaintiff and Appel.
liant, VS.. Emma c. Burdick, Defendant
and Respondent.
SYLLABUS:
L.. Where the plaintiff, after the
testimony has all been taken, moves
Tor directed verdict, which motion
is denied pursuant to the statute
and follows seasonably with mo-
ton for judgment Notwithstanding
tho verdict, which motion is also de-
MED. and thereafter appeals from the
Judgment, upon the ground among
others, that the evidence is INSULT
clent to support the verdict, the ques-
ton of the sufficiency of, the evil
dence to support the verdict is pro-
pcrly before this court for review.
z. An executory parol agreement
with person not Il party to the in
strument, to discharge promissory
note past due, by accepting property
instead of money, constitutes no de-
Tense in suit upon the note against
the person primarily liable thereon.
Such an agreement is without con-
sideration and unenforcible by any
one until fully performed by deliv-
cry and acceptance of the property
pursuant to the agreement.
3. Where a person, who is indebt-
ed to the plaintiff in large sum of
money, and for VIII ose accommodation
note for 100000 was executed by
another person, such note being held
by the plaintiff as payec, delivers a
quantity of promissory notes to the
plaintiff, it is presumed, in the alb
sence of evidence, that such notes
are accepted and retained as collat-
eral to existing indebtedness and not
in payment thereof.
d. Where Il parol agreement is
entered into between person, not
party to Il negotiable instrument
and the payce thereof, wherein the
payec promises to select notes from
quantity of promissory notes, to be
later delivered, in payment of such
instrument then long past due, and
where, thereafter, quantity of
promissory notes is brought to the
office of plaintiff, and after con-
vcrsation and discussion, the payec
makes no selection from such notes,
but takes all the notes and says he
Will hold them as collateral and
gives no credit on the note of the ac-
commodation maker, pursuant to the
prior understanding, and where no
protest is made against this conduct,
and where the party accommodated
subsequently makes payments upon
the accommodation note and in all
respects treats the same as the sub
sisting obligation of the accommo-
dation maker, the accommo dation note
is not discharged and such trans
action does not constitute a defense
in suit against the accommodation
maker by the payec.
Appeal from judgment of the
District Court of Williams County,
Hon. Geo. H. Moellring, Judge.
Opinion of the Court by Bronson,
Reversed.
Bronson, Oh. j. Dissenting.
Fisk 4 Taylor, Attorneys for Plain
tiff and, Appellant Williston, North
Dakota.
U. L. Burdick, c. L. Dawson, A. ].
Knox, Of Counsel, Attorneys for De-
PENDANT and Respondent, Williston,
North Dakota.
FROM GOLDEN VALLEY COUNTY
Agnes Evcrctts as administra-
trix of the estate of Thomas
Everetts, deceased,
Plaintiff and Respondent.
Northern Pacific Railway Com
pany, corporation
Defendant and Appellant.
Andrew McNeer, as Admins
traitor of the estate of A. O.
McNcer,
Plaintiff and Respondent.
VS..
Northern Pacific Railway Com
pany, corporation,
Defendant and Appellant.
SYLLABUS:
/. A railroad section crew, ote of
whose duties it is, to patrol the
tracks in time of storm, assume the
risks ordinarily incident to the per-
formance of that duty.
2. While a railrSad section crew,