The Bismarck tribune., 1929-02-25

II
was made effective, is pictured above.
n an independent state. At his right,
ancisco Borgongini-Duca, the Pope'S
;tate for Italy.
not limited to pupils attending
schools within the district.
az The nearest school maintain
cd within the district Of plaintiffs
residence was approximately five
miles distant and school in an ad-
Joining district was maintained with
in approximately half this distance
and the school board of the district
Of the plaintiffs residence arranged
for the attendance of the plaintiffs
child in the adjoining district and
paid the tuition. ncglccting to fur
nish transportation or to arrange
for it. such transportation being fur
nished by the plaintiff; held. it was
not incumbent on the parent, under
these circumstances, to request
transportation to be furnished to tho
more remote school within the dis
trict and that the obligation to pay
for transportation the minimum sum
fixed by statute is not conditioned
upon request by the plaintiff and
the refusal of that request.
(Syllabus by the court)
Appeal from the District Court Of
Sioux County, North Dakota, Hon.
IL. l.. Berry. Judge.
AFFIRMED. Opinion Of the court
by Birdzell, j. G. F. Kelsch. and
NJ. X. Higgins. of Mandan. Attor-
neys for Appellants. A. MEG. Beede,
OF Fort Yates, and Sullivan, Hanley
e. Sullivan. of Mandan, Attorneys
for Respondent.
Barlow Grain and Stock Exchange,
a corporation,
Plaintiff and Appellant
VS..
Johanna s. Nilsson,
Defendant and Respondent
(D In an action brought by a
third party as creditor beneficiary
upon q contract alleged to have been
made between the defendant and her
husband, the latter since deceased.
whereby the husband transferred to
the defendant quarter section of
land and all of his personal prop
erty in consideration of a promise
by the latter to pay his indebtedness,
the evidence is examined, and it is
held that there is a failure of proof
OF the making and performance of
the contract alleged.
(2) Where a creditor beneficiary
sues upon a promise made for his
benefit, if such contract is condi.
tional, voidablc or unenforceablc at
the time of its formation, or subse-
quently ceases to be binding in whole
or in part because Of the failure of
the promisee to perform a return
promise which was the consideration
for the promisor's promise, the right
of such creditor is subject to the
same limitation. (Section 14O, Re-
statement of the Law of Contracts.
American Law Institute.)
(3) Subdivision 2, Section 1871,
Compiled Laws Of 1913, does not
preclude a party from testfiying to
a transaction with deceased per-
son in an action against defendant
where such defendant is sought to
be held personally liable upon q COLI
tract with the deceased and not in
any representative capacity. The
statutory disqualification is not to
be extended by construction. (St.
John v. Lofland, 5 N. D. 14O, "a
N. w. 93O.)
(4 For reasons stated in the
opinion, it is held that the trial court
property exercised its discretion in
denying the motion for q new trial
on the ground of newly discovered
evidence.
(Syllabus by the court)
Appeal form the District Court of
Foster County, Hon. j. A. Coffey,
Judge.
Affirmed. Opinion of the court by
Birdzell, ].
G. B. Craven, of Darlington, At
torney for Appellant.
James Morris, of Darlington, At
torney for. Respondent.
James Hart, Trustee Of the Estate
of Edward j. Curtin, bankrupt,
Plaintiff and Respondent
vs..
G. j. Weiser, ct al,
G. j. Weiser. r. A. Engbertson and
L. B. Whitney, Trustees,
Defendants and Appellants
On the authority Of Hart, Trustee,
Y. Weiser: ct al, IN. D,
IN. W, and for the rea.
sons stated therein assigned. the
Judgment appealed from is reversed
and judgment is directed to be en-
tered quieting title in the defend
ants.
(Syllabus by the court)
Appeal from the District Court Of
Golden Valley County, Hon. r. I.
Lembke, Judge.
REVERSED AND REMANDED s
Opinion Of the court by Birdzell. J..
Theodore B. Torkelson, Of Bowman,
and Lawrence, Murphy & Miles. Of
Fargo, attorneys Tor appellants.
John Keohane and Albert M. Kuh-
feld Of Beach, attorneys for re-
spondent.
Pred Anderson. plaintiff and appel-
liant. W. Adele e. Resler, ct Al
defendants; Adele @. Resler. q. j.
Dougherty, and the First National
sA Rank ~ 4kapkWoatI&ar San%A~an.A~