MASTER AND SERVANT—continued.
presume that the term "hazardous" must necessarily refer to employments
that have heretofore been termed hazardous by reason of extra features
of hazard inherent to the nature of occupation. State ex rel. Amerland v.
Hagan, 306.
3. The legislature, within the exercise of its police powers in enacting a com-
pulsory compensation act, may abrogate common-law defenses and impose
liability without fault, substituting new rules of legal procedure in place
of the old, so long as its action in that regard is not arbitrary, unjust,
or unreasonable. State ex rel. Amerland v. Hagan, 306.
1. It is held (in a case where a mortgage was on record which was not entitled
to be recorded and where a creditor had obtained a judgment against the
mortgagor after said mortgage had been recorded), that the record of such
mortgage did not constitute notice to a creditor, who lawfully obtained a
judgment against the mortgagor, in whose name the title to the real
estate described in the mortgage appeared of record. First Nat. Bank v.
Casselton Realty & Invest. Co. 353.
2. That the judgment is a lien prior to the mortgage. First Nat. Bank v.
Casselton Realty & Invest. Co. 353.
3. Sections 8075 and 8076, Comp. Laws 1913, provide: "It shall be unlawful
for any agent or attorney of any mortgagee, assignee, person or persons,
etc., owning or controlling any real estate mortgage to foreclose the same
until he shall receive a power of attorney from such mortgagee, assignee,
person or persons, etc." It is further provided that a power of attorney
shall, before the day of sale, be filed for record in the office of the register
of deeds of the county wherein the real estate is located. Davidson v.
Houge, 449.
4. Where the notice of foreclosure sale is signed by the mortgagee, or his name
is signed thereto by his agent or attorney, without such agent or attor-
ney's name appearing on such notice, and such notice is published and
foreclosure proceedings completed, and the property is bid in in the mort-
gagee's name and by his direction, and he accepts, receives, and retains
the benefits thereof, such foreclosure proceedings may be considered under
these circumstances as the act of the mortgagee, and a foreclosure by him
is a valid foreclosure. Davidson v. Houge, 449.
5. Certain exhibits were excluded from evidence which tended to prove that
foreclosure was made with the knowledge, consent and acquiescence of the
mortgagee, and that he received and retained benefits under such fore-
closure, while contending the foreclosure was void by reason of failure to
comply with the above laws: Held, that the exclusion of such exhibits was
reversible error. Davidson v. Houge, 449.
1. Where one of two defendants who was notified of the date of trial more
than ten days before the convening of the term of court was not present
when the case was called for trial, it appearing that he had been called
out of the state on account of the illness of a sister-in-law, it was not
error, in the circumstances of this case, for the trial court to order the
trial to proceed. Bergh v. Hellickson, 9.
2. But where, on motion for a new trial, it appeared that the facts relied upon
by the defendants were more peculiarly within the knowledge of the
absent defendant; that the other defendant relied upon the absent de-
fendant for notice of the date of trial as well as for proof of facts; and
that the absent defendant was under such state of mental depression, due
to the recent death of his mother, his wife, and his only child, and the fresh
news of the serious illness of his sister-in-law, as to be incapable of
properly attending to his own affairs, the failure of the defendants to be
present to defend the action being attributable to the foregoing facts, a
new trial should have been granted conditioned on the defendants paying
the costs accrued prior to the motion. Bergh v. Hellickson, 9.
1. A promissory note of a debtor does not operate as an absolute payment of
his obligation unless it was intended to so operate. State ex rel. Olson
v. Royal Indemnity Co. 550.
1. It is held for reasons stated in the opinion that there was sufficient evidence
to require submission to the jury of the question whether the defendant,
Person, was a member of the Western Building Company, a fictitious co-
partnership, and as such liable upon notes given by that company to the
plaintiff bank. Union Nat. Bank v. Western Building Co. 336.
1. An agent possessing general authority from his principal to act as mana-
ger in the sale, trade, and exchange of stallions under guaranty contracts,
may waive the provisions thereof when possessed of such authority, even
though there is a stipulation contained in such guaranty contract provid-
ing that salesmen are forbidden, in any way, to change the printed form
of the guaranty. Leroy v. Hagen, 1.
2. In an action on promissory notes given for the purchase price of a stallion,
where a guaranty contract provided that the stallion should be serviceable
and a 50 per cent foal getter, after fair trial on sure breeding mares, with
the right of the purchaser to return the stallion and receive another
PRINCIPAL AND AGENT-continued.
horse of equal value that is supposed to be sure, provided such stallion
was handled carefully, returned in proper condition, and reports made
monthly of the service of such stallion; and contained the specific pro-
vision that salesmen are forbidden, in any way, to change the printed form
of the guaranty contract, and where it appears that there is evidence that
the stallion was not a 50 per cent foal getter, that the purchaser reported
such fact to the agent who sold such stallion, and the agent thereupon
advised the purchaser to keep the horse and try him another year, and
that he would ship up another horse in exchange therefor, the agent pos-
sessing the authority so to make an exchange,—it is held that the ques-
tions of the utility of the stallion under the contract, and the authority
of the agent, were questions of fact for the jury; and that the trial court
erred in directing a verdict against the defendant. Leroy v. Hagen, 1.
1. Where certain chattel mortgages were foreclosed by an action, and a sum-
mons was issued which claimed to recover, from the defendant, more than
four times the amount actually owing upon the mortgages, and, in the
course of the action, a warrant of seizure was issued and placed in the
hands of the sheriff, under which all of the property described in the
mortgages was taken from the possession of the defendant, such property
consisting of a large amount of live stock, machinery, grain, and other
property, the plaintiff in that action knowing, at the time it caused to
be issued said warrant of seizure, that it was foreclosing such mortgage,
and maintaining said action for more than four times the amount actually
owing it, and the complaint, in this action, which is one for abuse of
process in the foreclosure action, alleging all the foregoing facts, and fur-
ther alleging that the warrant of seizure was maliciously and wilfully is-
sued, with such knowledge.
It is held, the complaint states a cause of action for abuse of process,
and that the court erred in not receiving evidence offered by the plaintiff
to substantiate the allegations of his complaint. Blair v. Maxbass Security
Bank, 12.
1. A deed delivered with the name of the grantee therein blank, with no proper
authorization shown to fill in the name of the grantee, is void in law on
its face. Brugman v. Charlson, 114.
1. Under the provisions of § 7588, Comp. Laws 1913, a receiver may be ap-
pointed, among others, in an action between partners or others jointly
owning or interested in property, on the application of the plaintiff, or
of any party whose right to or interest in the property is probable, and
when it is shown that the property is in danger of being lost, removed, or
materially injured. Receivers may also be appointed in all other cases
where receivers have heretofore been appointed by the usages of courts
of equity. Dale v. Duffy, 33.
2. For reasons stated in the opinion the order appointing a receiver in this
case is affirmed. Dale v. Duffy, 33.
1. In this case defendant appeals from a judgment for $700 and interest. For
a Cadillac car he paid, in cash, $1,600, and turned over to plaintiff a Hud-
son auto valued at $700. The Hudson car was in possession of the Minot
Auto Company for repairs. Both parties went together and notified the
company of the trade, and plaintiff took and carried away the tools of
the Hudson car. Held, that the plaintiff at once became the owner of the
Hudson car, and the Auto Company became his bailee, regardless of the
fact that defendant had agreed to pay for the repairs. Harshman v.
Smith, 83.
2. In an action to foreclose a chattel mortgage on a tractor and other machin-
ery, where it appeared that the tractor was sold under parol representa-
tions and warranties which were not embraced within the written order,
and where the written order expressly negatived warranties, the purchaser
being induced to sign it by misrepresentations of agents, who stated that
it contained the warranties agreed upon, and where the duplicate order
intended for the purchaser was delivered to him but immediately retaken
by the agent under the pretext that it was needed for convenience in check-
ing the goods on arrival, and where the purchaser made a claim for dam-
ages for loss of time and expenses incurred by reason of the failure of
the tractor to perform as warranted, which claim was settled in full for
$200 and upon the additional understanding that the tractor would be
put in working order, and where the evidence shows that the tractor did
not comply with the warranties,—that it was never put in working order,
and that by reason thereof the consideration for the defendant's notes as
represented by the price of the tractor had failed, except to the extent
that he had been benefited by its use, it is held: That the contract of
purchase, in so far as it relates to the tractor should be rescinded and the
defendant's obligations to that extent reduced, and that defendant should
have judgment for the payments made and for his damages as agreed on.
Emerson-Brantingham Implement Co. v. Busch, 259.
3. Upon the settlement of a claim for damages incident to the failure of a
tractor to work as warranted, where the written portion of a receipt signed
by the purchaser expressly states that it is "for damages and lost time
in full," and the printed portion, not read by the purchaser, embraces
also a release of all claims and all warranties, the testimony showing that
the latter was no portion of the agreement of the parties, the receipt or
release does not bar the defendant from reliance upon the warranties.
Emerson-Brantingham Implement Co. v. Busch, 259.
4. In an action to recover a balance owing by the defendant, a florist, to the
plaintiff, an importer of bulbs, where it appears that the plaintiff, in fill-
ing an order of the defendant, furnished an inferior quality of lily bulbs,
for which it later substituted a different species of cold storage bulbs,
and where the defendant filed a counterclaim based on the inferior quality
of the bulbs, claiming consequential damages for the failure of the flower
crop, the trial resulting in a judgment for the defendant for $843.26, it
is held: Under Sec. 15 of the Uniform Sales Act (Sess. Laws 1917, chap.
202), where the buyer relies upon the seller's skill or judgment (though
he be not the manufacturer or grower), the seller knowing the purpose
for which the goods are intended to be used, there is an implied warranty
that the goods shall be of merchantable quality and fit for the intended
Ward v. Valker, 598.
5. The fact that the seller substituted certain other lily bulbs for the ones
ordered, and shipped them from a different source of supply indicates an
exercise of judgment sufficient to justify the buyer placing reliance upon
its "skill and judgment." Ward v. Valker, 598.
6. Where circumstances anterior to the invoices indicate the existence of an
implied warranty, a printed statement on the invoice in negation of a
warranty does not operate to extinguish it as a matter of law. Ward v.
Valker, 598.
7. The record showing that the damages recovered on the counterclaim were
based upon a breach of an implied warranty, in the sale of goods substi-
tuted for those originally ordered by the defendant, and that the substi-
tuted goods were not supplied as a part of the original order, the clause
in the original order which expressly provides that no warranty is given
is not applicable to the sale of the substituted goods. Ward v. Valker, 598.
8. In an action to recover on a book account where the defendant counter-
claimed, asking damages for the failure of the plaintiff to fill certain
orders for goods, which orders had been previously given by the defendant
to a salesman representing the plaintiff, and receipt of which had been
acknowledged by the plaintiff, it appears that according to a prior course
of dealing between the parties the invoices for the goods represented by
the order were to be dated November 1, 1917, defendant to have sixty
days' credit thereafter. The defendant had allowed his previous accounts
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