The Bismarck Tribune Newspaper, July 2, 1919, Page 6

PAGE 6 {SUPREME COURT [ 4. From Hettinger County International Harvester Company of America, a corporation, plaintiff and respondent, vs. Peter W. Thomas and Erma E, Thomas and Ruby H. Tall- madge, detendents and appellants. ( .ABUS) (1) The plaintiff sold to defend- ants, the Thomases, a certain gas en- gine accompanied by a written war- ranty and took the defendants’ note and mortgages for the same before the delivery of the engine. Defendants made certain payments thereon and were to much expense in buying re- pairs for the engine. According to the preponderance and weight of the, testimony, the engine was wholly worthless; held that the notes were without sideration or if there were any consideration it had failed; that the moitg: , both chattel and real, 3 e notes, were of no force nor cf: and were or had become wholly invalid and unenforceable, that the defendants are not liable on the notes nor mortgages; that the defend- ants are entitled to recover any pay- ments made and the amount expended by them for repairs thereon, . (2) Where a renewal note is given instead of another which represented part of the indebtedness of a certain wansaction, whatever defenses might have been available as against original note, is equally available as against the renewal note so long as the trans- action remains one between the orig- inal parties. (3) Where one had given a re- newal note for another note which rep- resented part of the purchase price of certain machinery and in addition to the ordinary terms of a promissory note there was inserted in the renewal note a waiver of the maker’s remedies, if any, against the payee and said note is signed without the defendants ex- pressing any intention to waive their right to such remedies or without their attention being particulary called to the waiver in the note, even though they could read and write, it is held that such waiver in such cir- cumstances is of no force nor effect and is wholly invalid and constitutes constructive fraud, it being a contract in itself separate and distinct from the promissory note and there being no testimony showing that defendants in- tended to sign anything except a promissory note. (4) Plaintiff by its experts pro- cured other waivers of defendants’ remedies against the plaintiff upon various pretexts, such as procuring defendants to sign a waiver while rep- resenting it simply to be a paper to show delivery of the engine, etc. Held | that waivers procured in this manner were procured by misrepresentation and constituted constructive fraud; that by reason thereof they were of no force, effect, nor validity; that the signing of the name by the defendants in the circumstances in which they were signed in no manner defeats their Tents or remedies against the plain- tirf. Appeal from district court of Het- tinger county, W. C. Crawford, judge. Reversed and remanded to trial court for further proceedings not in- Opinion of the court by Grace, J. Christianson, C. J., and Birdzell, J., dissent. Miller, Zuger & Tillotson, Bismarck, N._D., attorneys for respondent. Jacobson & Murray, Mott, N. D. and E. T. Burke, Bismarck, N. D., at- torneys for appellants, From Divide County. H. Johnson, plaintiff and appel- lant, Oscar Rosenquist, defendant und respondent, Syllabus: The defendant was sued for $15,000 damages for rape. He was a single man. He offered to marry the girl and did do so. Prior to the time of the marriage he gave a note to the attor- neys who brought the action for $2,500, secured by a mortgage on certain land. The note and mortgage were for at- torney’s fees. For the reasons stated in the opinion the note and mortgage are held to be without considerati and to have been procured by dui The trial court found that the note and mortgage were procured by duress and his judgment is right and is af- firined, Appeal from judgment of the district DITES--STINGS | Wash tho a! | surface with ho as h (warm sli w: VICKS VAPORUS #YOUR RARYFIIA NN RTRs ON e FATE SAYS _ DEMPSEY’LL WIN FIGHT Toledo Spiritualist - Palmist Reads the Sign of Wealth and Triumph in the Lines of Chal- lenger’s Hand. BY BETTY BROWN Toledo, 0., July 2.—If you believe in signs—put your money on Jack Dempsey! Fate has doped Jack Dempsey to win the championship! It’s in his palm! {It’s in the spirit- ual influences hovering over Jack’s head- According to ail the “signs” Jack’s troubles are over and he’s on the high road to wealth and great notoriety! I’m just home from a “reading” with one of the most noted and suc- cessful of [Toledo’s seeresses—a com- bination palmist and spiritualistic me- dium who gave me a reading of Jack’s palm so accurate and so thrilling I’m ready to go out and bet money on him myselt! I can’t tell you the lady’s name be- cause palmistry is “agin the law” in Toledo—(it seems to be baout. the ONLY thing that’s “agin the law” here)—and 1 don’t want to get my friend in trouble. This morning Jack Dempsey obligingly inked his mighty right hand for me and impressed it firmly on a sheet of smooth white paper! Jack was too busy to chase a palmist with me this aft- ernoon. He had a little scrapping date with Bill Tate, et al. at his training camp. However, I sleuthed out the palmist lady, and flashed the palm impression on her as that of a friend of mine! Without knowing the identity of the palm’s owner, here are her first re- marks: “He’s in some kind of dangerous business! Is he an aviator? No-O— I see it isn’t that—but it’s something awfully dangerous. He must guard against an accident. “He’s in a specially critical time of his life right now—he must beware of an accident—but I see he’s going to! get through what he’s tackting all| right. I’d say he was in his twenties | —isn’t he? Young! “He’s a big fellow—lots of energy) and power. He’s so determined he can do anything he wants too. “My, what a hand! I see big things in it—he’s going t ohave wonderful success—money—notoriety! It’s right there! It’s coming soon—lots of money—immense success. He’s going to accomplish something big—and in the near future. I don’t see anything| as can stop him.” “Your friend is going to have lots of money. You tell him when he gets it not to let it make a fool of him. “He is sometimes subject to fits of melancholy. That is foolish—he has nothing to worry about. “When he reaches the age of 35 he will have everyhting—he wll be at his eee court of Divide county, Leighton, judge, i Affirmed, Opinion of the court by Grace, J. Greene & Stenerson, Minot, N. Dak., attorneys for appellant, Geo. P, Homnes, Crosby, N. Dak., at- torney for respondent. From Benson County. The Stubbins Hotel Co., a foreign corporation, plaintiff and_ respondent, vs. E, Beissbarth and J. V. Williams, ! defendants, E, Beissbarth, appellant, Syllabus : (1) Certain instructions of the trial court’ examined and held to be with- out prejudicial error to the appellant. (2) Where an appeal is taken to this court from a judgment of the dis- trict or county court and the evidence is not made a part of the record on ap- peal, every reasonable presumption will be indulged in support of the judgment. Under the instructions in this case, one of the main issues was whether the de- fendant Beissbarth signed the note in qnestion as an accommodation maker Yor Williams or the Linden Hotel and the Stubbins Hotel company, they being one and the same company. The jury found in favor of the plaintiff and thus, in effect, found that Beissarth signed the note as an accommodation maker for Williams, and, in accordance with the rule above stated, it is presumed the Chevrolet, Hupmobile and Hudson Motor Cars Smith Form-a-Trucks and Tractors Kelly-Springfield and Pennsylvania Tires Prest-o-Lite Batteries and Parts ACCESSORIES NOTICE——— We have on hand a few used cars which we will sell at reduced prices in order to: have a clean slate for our semi-annual inven- tory July 1. Some real bargains. MISSOURI VALLEY MOTOR COMPANY Bismarck, N. D. |} BISMARCK DAILY TRIBUNE best. His good habits will be his best friends. : “T also see the figures 35,000. I don’t know whether its dollars or not—it’s 35,000 though—very plain.” I couldn’t hold in any longer! I had to tell her the truth—and find out | all the details of what is going to happen! { blurted out: “This is the hand of one of the fighters!” It’s Dempsey,” she exclaimed. “I’ve seen the D there all the time.” “That explains that great suc- cess line! He’s going to win! Everything is in his favor—he’s suré to win.” : “Four is his lucky number. He cer- tainly has luck in his favor on the Fourth. “He has a lot of scientific skill—I see it. He thinks. He works scien- tifically. “TELL HIM T OBE CAREFUL IN THE FIFTH ROUND!— THAT’S HIS MOST DANGER- OUS ROUND.” She began to count, slowly. “QOne—yes—tell him to take it easy , in the first round. The other man wil Itake it easy. Two, yes—three— four—five—five—there he must be careful! — six, yes—seven—eight— EIGHT! That’s his round! Things look fine there—that’s most favor- able!” : | Then I paid the lady my little old dollar and galloped to this typewriter to tell you all about it—and advise you—(if you believe in signs)—to put your money on Jack Dempsey! evidence sustains the judgment enter- ed upon the verdict returned by the jary. Appeal from the county court of Penson county, O. D. Comstock, judge. Affirmed, Opinion of the court Christianson, Ch. J., and Birdzell, J. dissent, Victor Wardrope, Leeds, North Da- kota, and L, L. Butterwick, Minnewau- kan, N. Dak., attorneys for plaintiff and respondent, Sinness & Duffy, Minnewaukan, N. D, attorneys for defendants and appel- lant. by Grace, J. From Steele County. Dwight Farm and Land company, a foreign corporation, plaintiff and res- pondent, vs. A. H. Johnson, and all other persons unknown, claiming any estate or interest, or lien or incum- brance upon the property described in the complaint, defendants, and now, A. H. Johnson, alone, deefudant and appellant. Syllabus: A contract of sale does not live for- ever when there is no performance un- der it. After the lapse of twenty years without any performance of a holder of the contract is in no posi- tion to assert any right or claim under Daily Tribune, how nice he’s being treated. ' ,| tract is executed with a. successful bid- contract for the purchase of land the! HERE’S JACK: DEMPSEY’S. PALM V Are you good at palm-reading? . Do you agree with the Toledo medium who says Jack Dempsey’s hand proves he will beat Willard on July 4 and win the heavyweight championship of the world? Appeal from the district court of Steele county, Hon: -A. T. Cole, J. . Affirmed. Opinion of the court by Robinson, J. Grace and [Bronson, JJ., concur in the result, Chas. A, Lyche, Hatton, attorney for appellant, P. ©. Sathre, Finley, at- Itorney for respondent. From Grant County. F, G. Boettcher, suing on behalf of himself and all other persons similarly situated, plaintiff and appellant, vs. 1 KE, McDowall, Wm. Wade, Wm. Eestman, constituting the board of county commissioners of Grant county ; J. G, Patterson, county treasurer; Rob- ert D, Berry, county auditor; Grant county, a municipal corporation, and J. Henry Bellman, defendants and re- spondents, Syllabus: In an action. to enjoin the construc- tion of, and payment for, a court house, wiere no temporary injunction forbid- dmg the construction was issued and where, at the time of the trial on the merits, the court house Was practically completed, it is held: (1) Where a new county is organ- ized ‘and, in the settlement with the county from which the territory com- prising the new court, house was sever- ed, the taxes préviously levied by the original county are assigned to: and collected by the new county, such taxes being in excess of the.expenditures for the various purposes for which the same were levied during’ the current fiscal year, the balances’ so existing at the end of the fiscal year are subject to transfer to the building fund, under Sections 3287 and 3268, Compiled Laws of 1913, (2) Where, prior to the close of the first fractional fiscal year, the county commissioners of a new: county take preliminary steps looking toward the construction of bridges during the suc- eceding fiscal year, and a written con- der in the succeeding fiscal year, such contract does not créate a special charge upon the balance in the bridge fund as. it existed at the close of the fractional fiscal year, but is a proper jtem entering into the county budget of the current fiscal year. (2) An emergency fund created by tax levy is subject to the control of the board of county commissioners upon whom is imposed the duty of directing the fiscal affairs of the county; and in the absence of a statute so requiring, such fund is not automatically subject te the payment of warrants drawn up- on other funds of the county which may he overdrawn at the time the warrants are issued, Laws of 1913 does not require a vote vyon_ the question of. the construction of a court house in new county, where |the same is constructed from a build- ing fund comprised of unexpended bal- ances in funds assigned to the new ccunty by the county from which the territory is. segregated, (5) Where, during the pendency: of litigation started for the purpose of enjoining the construction of a court house,- the building is practically com- pleted_and the place at which it is located is fixed by popular election as the county seat, there being no fraud shown and no contention that the build- ing ts not well worth the contract price, and‘ it appearing that the county had sufficient funds legally applicable to the discharge of the contract and that the commissioners had ample authority to. proceed with the work, there is. no equity in favor of the plaintiff to sup- pert hig prayer for injunction against payment on the ground that the con- tract was not legally let. Appeal from district court of Grant county, Hon. W. C. Crawford, judge, sitting at request of Hon. J. M, Han- ley, district judge. Affirmed. Opinion of the court by Birdzell, J. Grace, J., dissents. Jacobson & Murray, Mott, attorneys for plaintiff and appellant. Sullivan & Stllivan, Mandan, attor- neys for defendant and respondent. W. F, Burnett, Dickinson, of: Counsel, ¢ e i | PEOPLE’S FORUM | LEENA STI ECAC - LABOR PARTY. “A Union Miner” of Wilton, North Dakota, lacks a sense of proportion wher he: tries to stop the tornado of progress by a little bit of paper bear- ing his article entitled “Labor Par-y” in Friday’s issue. He says trades unionists don't need a labor party, and talks of progress made without-tt. Somebody ought to wake up tals new after-the-war. Rip Van Wink’c. who is asleep when things are bi» ecnie fmer'caa way of wr Zach Cigar in “f, its own humidor Many smokers say it is “Better than the average 10c cigar, and , ¢~ superior to most.” When you stop to re- ’ alize that we make El Dallos by the millions whereas the average Ci er makes his brands by the thousands, you can readily see why. Ask your dealer for El Dallo—mild, ¥ fragrant and satisfying. Genuine SumatraWrapper and Long Filler 7c %i 8c 3 Mads by, WERTHEIMER BROS, Baltimore, Md. Distritinted thrangh: Noyes Bros. & Cutler, Inc., St. Paul, Minn. justice out & aad apply- Home From Meetings. Rey. and Mrs. William Suckow, 811 tec, ant fue te pening before his. nose. ing eternal motto, “t efeatest|.Avertue C, returned to. the city on i Soinebody ought, to, tell hon of the pool. to spe gre t bin a lan Monday from points in the state formation four years ago of a farm | is attracting Pr (1o ve v 3 where they spent a number of days. , hi ed in n| function'se the /espert«° s enemies e ers’ organization ‘that has passed 12 and (ie nlauai's orks + ad Mrs. Suckow attended the W. C. T. couple. of years three hundred (30) laws for the benefit. of its members, and that labor unions now fumberins four milliott (4,000,000) strong, aav passed in thirty-five) ydars-—just three laws that .Samuel Gomper', their president, says he can reniém- ber off hand. What a record! Why this hideous, unheard of ineffi- ciency on the part of the one, and tie unheard of efficiency on the part of the other? That “union miner” of Wilton gives the answer—one géts what he is in a position to demand (and not beg?) The political organization of the farmers of our sunshine’ state of North Dakota are in a position to de- mand and the giant organization of the federation of labor is in a posi- tion to beg. And you know that: one can not get anything worth while when he goes after it with the bend- ed knee and the apologetic voice, the un-American way. s.0: 257. =: , Labor, the sinews of American manhood and womanhood, gets only a crumb or two thrown down to it, because he can only beg. The farm- ers. of this wild rose state, sit at the banquet table, because they are in @ position to demand, by concentration of all their votes on certain objec: tives by means of a. political party called, Nonpartisan league, A name unique in itself, and an agency un- paralelled in the manly way they go at it, in the lack of bluster and the shadow of violence, in the manly, (4) Section 3280 of the Compiled IS pas Potatoes it JACK LIKES WATERMELON! _ Jack Dempsey had a birthday in Toledo, and admirers gave him a mammoth watermelon with “Happy Birthday!” tered on it with a knife. Dempsey’s here the melon as he tells Betty Brown, N. E. A. feature writer for the. neatly let shown preparing to slice PER POUND 75c «G REEN GETITAT © COWAN’S Bismarck.ND. , The Oldest and Largest Bank in this sectionof the State Painstaking thrift and systematic. economy are the foundation of all suc- cesses. Practically every business triumph - began with capital accumulated by means of Savings Ac- counts. If you plan for, the fu- ture, if you mean some day to own your own home and your own busi- ness, ‘open a” Savings Account TODAY. This’ bank pays. 4% compound interest on de- posits of $1 or more. Established 1879 else ti metiiod of livelihood ot U. meeting at Alice, and Rev. Suck- This century has fixe. °->rythini HM e. ow spent a few days at Underwood. the most impcriant—the wu tnkind. Lon't you thing it is asout time to bring economics into line with the rest, and place joy in life, through the adminjstra‘{on of economic justice, by demanding, and not begging for our rights by the formation of a La- bor Party? Yours truly, JOSEPH VARGE, Driscoll, N. D. For COVERED DELIVERY ne ‘. 1916 Model Studebaker, first class TRUCK ALE condition, for sale cheap. See Ryan at Golden Rule or Phone 37. ESSSSSSSSS'S DEPOSITS SECURED BY OUR PARTICIPATION IN THE STATE DEPOSITORS GUARANTY FUND Oil Wells and Bank Boake Promoters of dubious stocks are quick to point out the large income derived from successful en- terprises. They often blind people to the un-alterable law that governs all investments; they forget to tell their prospects that the percentage of profit is no larger than the percentage of risk. You can’t “get rich quick” without taking the chance of getting poor just as speedily. For every fortune built upon speculation there are hosts of others built upon the legitimate, cer- tain investment that careful banks can offer. We believe in the latter course and stand ready to help you along such lines. - THE BISMARCK BANK _ Bismarck North Dakota ral RT For Sale Attractive bungalow on desirable corner, Avenue B, West; $5,000 Net, subject to sale. For Rent ‘A few offices; second floor; electric elevator and Janitor service. Bismarck Realty Co. Bismarck Bank Bldg. North Dakota