The Bismarck tribune. [volume] (Bismarck, N.D.) 1916-current, 1923-03-09
DECISIONS OF SUPREME COURT
From Divide County

FROM DIVIDE county
Security State Bank of Crosby,
North Dakota, a corporation, Plain
tiff-Appellant.
Edwin Peterson, Defendant Res.
pendent.
Syllabus:
% Where an answer alleges
that defendant received no consid
Grafton whatsoever for a promissory
note. it is held, upon demurrer, to
sufficiently over an ultimate fact
presenting an issue upon considera-
ton.
(2) Where an answer has alleged
facts concerning fraud and misre-
pfesentation whereby no considera-
ton existed in the making of a pro-
missory note, it is held, upon de-
murrer, that defense is asserted.
CD Where an answer has alleg-
ed an oral agreement not to enforce
2 note and not to hold the maker
rersonally liable and, where such
Legations. in connection with aver
ments Of fraud and misrepresenta-
ton. may establish a note of accom-
odatlon without consideration, it is
held, for reasons stated in the opin-
lon. that a defense is asserted.
IN District Court, Divide County,
Moellring, j. Action upon a promis-
sorry note. Plaintiff has appealed
from an order overruling a demur-
ref to three separate defenses alleg-
ed in the answer.
Affirmed
Opinion of the Court by Bronson,
Ch.~J.
E. II Points, Crosby, N. D.
Leighton & Brace, Minot, N. D.,
Attorneys for Plaintiff-Appellant.
Braatelien & McIlraith, Crosby, N.
p, Attorneys for Defendant-Res-
inndent.
From Cass County
Peter Weller & Arthur Jalbert,
neutrality-suspicious., VS.. Mulgrew
Sons Company, Defendant-Appel-
amt.
Syllabus:
% A contractor, who is engaged
= excavating public drainage
tch, must use, in the performance
K his contract, reasonable care so
to avoid injury to adjacent lands
nd to him the familiar maxim, "sic
tere tue ut non alienum loedas" is
pplicable.
e. Where contractor engaged
IN excavating drainage ditch has
constructed and filled up an old
road ditch that served to drain flood
waters in the territory tributary
and, where, after heavy rain, flood
waters in such road ditch, through
the obstruction, were cast upon
plaintiffs field and, thereupon, the
contractor, becoming cognizant of
the conditions, removed the obstruc-
ton by communicating ditch
whereby such ditch properly func.
toned to drain off flood waters, and
where, thereafter, after receiving
advice from the Chairman of the
Drainage Commission to use his own
judgment. the contractor renewed
the prosecution of the work and
again maintained the obstruction SO
as to cast flood waters upon plain
tiffs' field and to destroy his crops
there growing, it is held, for reasons
stated in the opinion, that, under
the circumstances, the duty was inn
posed upon the defendant to exer-
else reasonable care in the contin-
uatfon or renewal Of the work, for
the failure Of which plaintiffs may
recover damages suffered thereby.
ca A right Of way release, grant
ed Nv plaintiffs to the county for
the construction Of such drainage
ditch, did not release damages oc-
casioned by the contractors negli-
gence.
az Questions concerning the ex-.
tra0rdinary character Of the storm
and concerning the sole contributing
and proximate cause Of the damages
awarded, were for the jury.
n District Court. Cass County,