Page:North Dakota Law Review Vol. 1 No. 2 (1924).pdf/8

8 the respective interests of the joint adventurers in certain lands, each of the joint adventurers should bear a proportionate share of the cost of certain buildings and other improvements which have been constructed on the premises.

From a judgment of the district court of Stutsman County, Jansonius, J., defendant Herman Konoske, appeals.

REVERSED IN PART.

Opinion of the Court by Christianson, J.

Birdzell, J., dissents.

Farmers Exchange State Bank of Sanger, North Dakota, Plaintiff-Respondent, vs. F. R. Schofield, Defendant and Appellant.

1. The sufficiency of the evidence can not be reviewed upon appeal in the absence of a motion for a new trial or of a motion properly made at the trial specifying the insufficiency of the evidence.

2. Where counsel has failed to make a request for instruction or to call the attention of the trial court concerning a particular issue arising upon the evidence adduced and otherwise submitted, he can not predicate error upon the failure of the trial court to particularly instruct upon such issue.

3. In an action upon a promissory note an endorser in blank can not establish by parol that the endorsement was made upon the understanding that it should be without recourse to him.

In District Court, Burleigh County, Coffey, J. Action upon a prommissory note. Defendant Schofield has appealed from the judgment.

AFFIRMED.

Opinion of the Court by Bronson, Ch. J.

S. A. Olsness as Commissioner of Insurance, acting for State Bonding Fund, Plaintiff and Appellant, vs. L. R. Baird as Receiver of Slope County Bank of Amidon, Defendant and Respondent.

1. Where principal debtor in default and surety who is bound for part of principal obligation discharges debt to extent of his liability, surety is not subrogated to rights of creditor against third parties.

2. Section 10, Chapter 158, Laws 1919, does not amount to contract giving Bonding Fund right of subrogation in competition with creditor where creditor's claim is only partially satisfied.

3. Where pro tanto subrogation based on contract, right must be clear and certain before subrogation permitted to detriment of obligee or creditor.

Appeal from Burleigh County, Cooley, Judge. Affirmed: Opinion by Birdzell, Judge.