The Bismarck tribune. [volume] (Bismarck, N.D.) 1916-current, 1924-02-02

In an action upon promissory
note given for the purchase price
Of a tractor where the defendant,
through a single defense set up as
u defense and counter claim, sought
tc establish through proof, breach
Of warranty, Il RECESSION of the con-
tract Of sale, and damages for the
breach of such warranty, it is held:
% That the statute, Sec. 7449.
c. l.. 1913, permits the pleadin OF
Inconsistent defenscs, if separately
stated
go That the defense Of defendant
as plead was single defense upon
the Theory of RECESSION of the con
tract.
(3) r't upon the evidence and
pursuant to Sec. SO, Chap. POP, Laws
1917 IS. 60, Uniform Sales Act),
! evidence was presented upon breach
! OF warranty and rescission of the
| contract of sale by reason thereof,
sufficient to support the verdict of
the jury.
In District Court, Morton County,
Gerry, J. Action upon a promissory
note. Defendant has appealcd-from
ii Judgment entered pursuant to Il
motion for Judgment notwlthstand-
ing the verdict.
judgment reversed and Judgment
uron the verdict ordered reinstated.l
Opinion Of the Court by Bronson.
Oh. j.
Jacobsen g. Murray. Mott, North
Dakota; S. p. Rigler, Hebron, N. D.,
Attorneys for Defendant Appellant
Norton & Kelsch, Mandan, North
Dakota, Attorneys for Plaintiff Re
spondent.
- From Ramsey County.
Emma B. Dean, Plaintiff Appellant,
VS.. j. III. Smith, Defendant-Re-
spondcnt
SYLLABUS:
In an action for an accounting.
where plaintiff has appealed from
certain findings and conclusions Of
the trial court wholly introductory
IL their nature, it is held, for reasons
stated in the opinion, that the right
CT appeal may not be sustained under
Subdivision /, Section 7841, C. l..
1918.
In District Court, Ramsey County,
kneeshaw, j. Plaintiff has appealed
from certain findings and conclusions
of the trial court which he asserts
constitute an order in effect deter
mining the action and preventing d
judgment from which an appeal may
be had. Defendant has moved to
dismiss the appeal.
Appeal Dismissed.
:. Per Curiam opinion.
Cuthbert & Adamson. Devils Lake.
North Dakota. Attorneys for Appel
liant
A. E. Wheeler, Devils Lake, N. D.
Mildaugh e. sSmythe, Duluth, Mimi.
Attorneys for Respondent.
From Burleigh County.
Adolrh Kutchera. Plaintiff and Re-
spondent, VS.. Minneapolis, St.. Paul
Sault Ste. Marie Railway Com
pany, corporation. Defendant and
Appellant
SILLABUS%
i l.. A person who undertakes a
specific job 6f repair work, furnish
ing his own assistants and doing such
work entirely according to his own
ideas and plans, and without being
subject to the order Of anyone else.
as to the details of the work. is an
independent contractor and not
servant.
g. A complaint which alleges that
a railroad tricycle. is dangerous in 4
strumentality. that the defendant
knew that plaintiff did not know such
fact, that the defendant authorized
the plaintiff to use such. tricycle. IN.
on defendants tracks under circum-
stances making the plaintiff a Ii
ccnsee. but did not warn the plaintiff
OF the dangerous character of the,
lnstrumentality, states "A cause OF
action, although it is not alleged
that the tricycle. was defective in
any specific particular that would dis
tinguish it from other instrumental
tiles of the same class.
Appeal from the District Court of
BurlelghsC County, North Dakota. Hon.
F. Jasonius, Judge.
Opinion o. the Court by johnson.
j.
Affirmed.
QlHare & Cox, ATTORNEYS for Pla,n-A
TN, Bismarck, North Dakota.
Newton Dullam & Young. Attor-
neys for Defendant, Bismarck, North
Dakota.
John f. Palmer, .ot Counsel. i