The Bismarck tribune. [volume] (Bismarck, N.D.) 1916-current, 1926-03-16

j judge. Reversed:
/ Opinion Of the court by Nuesslc, J
Cuthbert & Adamson, OF Devils Lake
attorneys for appellant; Traynor 4
Travnor, of Devils Lake, attorney
for respondent.
From Cass County
State Of North Dakota, plaintiff ant
| respondent, VS.. Anna Cook, de-
| PENDANT and appellant.
Syllabus:
| ~ 1t is the duty of this court
pursuant to Section 11Ol3, C. L. 1913
to decide a criminal case on appeal
without regard to technical errors
which do not affect the substantial
rights Of the parties.
(2) For reasons stated in the
| opinion, it is held, chat there is suf-
ficient evidence to support the find
ing of the jury to the effect that
the liquid sold by the defendant to
the prohibition agents was alcohol,
with the prohibition of the statute
and as charged in the information.
CD This court does not lose juris-
diction of cause so as to be without
power to grant re-hearing therein,
until after the remittitur has gone
down.
"a In the absence of a statutory
prohibition, the power to grant a re-
hearing, upon the petition of the
State or Of the defendant in a Grim.
inal cause, inhercs in this court.
While ordinarily d re-hearing is not
granted upon questions not presented
or discussed in the briefs or in the
oral argument, q re-hearing may be
granted to consider new aspects Of
material evidence, which may affect
the merits of the main controversy
and which, through inadvertence,
were not suggested by the parties or
considered by the court when the
original opinion was rendered. The
court has the power and, il is its
duty. so long as It retains jurisdic-
ton Of the cause, to correct errors
in its decisions, which may have
crcpt in, because Of mistaken as.
sumption of fact, or a misinterpreta-
ton Of the evidence. The rule, in
this respect, is not different in Grim.
Mal eases.
60 Under Rule 10, Of this court,
the Judgment of the court" within
The provisions of Section 1l0l9, C. l..
1913. is not "given" until after the
lapse Of fifteen days from the date
Of the signing of the decision and of
the order, and during such period
counsel may call attention to errors
in the opinion, or the court, on its
own motion, may withdraw it for cor.
rcction or change.
Appeal from the District court Of
Cass county, Hon. Charles NJ. Cooley,
judge. Affirmed.
Opinion Of the court per Curtain;
Birdzell and johnson, J. j., dissent
ing.
II. F. Horner, states attorney, and
v. r. Lowell. assistant states attor-
ney, Fargo, North Dakota, attorneys
for plaintiff and respondent. Wood
& Breaw, Fargo, North Dakota, at
torneys for defendant and appellant.
From Grand Forks County
State Bank Of Ardock, corporation,
plaintiff and appellant, VS.. Dan H.
Burke. doing business as Independ-
ent Elevator company, defendant
and respondent.
Syllabus:
In an action by mortgage for
conversion, where It appeared that
the defendant had purchased grain
described in the mortgage, paying the
mortgagor therefor, it is held: y
(D The parol evidence rule oper-
ates to exclude prior or contcmpDr-
aneous understanding that the mort
gage should not be operative in favor
of the mortgage upon the property
described.
(2) The induccment to a written
contract, which may be shown, or
dinarily relates to the consideration
and is explanatory Of the writing as
applied to the subject matter, but
where the signing Of the contract is
brought about by parol understand
ing that the obligation shall not be
enforcible, such understanding, being
contrary to the writing, may not be
shown. u
(3) Where a :parol understanding
relates to the subject matter of q
contract-dealing specifically with
the lien created thereby upon the
property descrihed-it is not collat-
cral and falls within the prohibition
of the parol evidence rule.
(D Where the plaintiffs claim is
based upon written instrument, and
where It IS asserted against third
party whose. rights are necessarily
subject to the rights of the plaintiff
under the written instrument, the
parol evidence rule applies between
the plaintiff and such third party.
(5) Prior negotiations, which be-
come merged in a written contract,
cannot operate rs a waiver Of the
terms of the writing.
Appeal from the District court of
Grand Forks county, Hon. Chas. M.
Cooley, Judge.
Reversed and judgment ordered
non obstante. Opinion Of the court
by Birdzell, ].
n. A. Bronson, and Mcintyre, Burt
ness & Robbins, Grand Forks, N. Dak.
attorneys for appellant; Libby &
Harris, Grand Forks, N. Oak, attor-
neys for respondent.
From MOuntrsil County