Page:North Dakota Law Review Vol. 1 No. 1 (1924).pdf/4

4 1. In an action by the State of North Dakota, doing business as the Bank of North Dakota, to recover the amount of a special deposit, made in defendant bank in connection with a farm loan transaction, it is held, for reasons stated in the opinion, that there is sufficient evidence to support a finding that the deposit was applied in discharging prior incumbrances pursuant to authority given by the plaintiff.

2. For reasons stated in the opinion, it is held, that the evidence is insufficient to support the verdict on the counterclaim for the difference between the special deposit and the amount of incumbrances discharged by the defendant bank.

Appeal from the District Court of Stark County, N. Dak., Hon. H. L. Berry, J.

Opinion of the Court by Johnson, J.

Judgment for defendant dismissing action affirmed; judgment on counterclaim reversed.

F. E. McCurdy and P. H. Butler, Bismarck, N. Dak., Attorneys for Plaintiff.

Crawford & Burnett, Dickinson, N. Dak., and Pierce, Tenneson, Cupler & Stambaugh, Fargo, N. Dak., Attorneys for Respondents.

Minneapolis Threshing Machine Company, vs. Joseph Huncovsky,

1. Where, thru inadvertence, no evidence is introduced and no finding is made, in an equity case, upon a material question, that bears directly upon the amount of damages awarderawarded [sic] to defendant, the case will not be reversed generally on that ground alone, but should be remanded and reopened for the taking of testimony and for findings on the matter omitted.

2. For reasons stated in the opinion, it is held, that it was not an abuse of discretion to reopen the case and permit defendant to introduce more testimony after both sides had rested, but before judgment had been ordered, following Fried v. Olson, 23 N. D. 381, 133, [sic] N. W. 1041.

3. Evidence is properly admitted to prove notice given by vendee to vendor of warranted personal property to the effect that the property does not conform to the warranty.

4. When a reversal is ordered on appeal and a new trial is granted, it is proper to tax the costs of the first trial against the then losing party, who is also loser on the second trial, when the reversal and the new trial are not made necessary by any act or omission of the other party.

5. Expenditures for labor and repairs, reasonably made in a good faith effort to make the warranted article conform to the just