Page:North Dakota Reports (vol. 1).pdf/583



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Oral demurrer to sufficiency of evidence is waived by failure to object to evidence which cures the defect. Bowman v. Eppinger, 21.

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Evidence to negative contributory negligence is not necessary to make prima facie case for plaintiff. Gram v. N. P. R. R. Co., 252.

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Instructions of trial judge to jury held correct under the evidence. Pickert v. Rugg, 230.

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The existence of any legal evidence in the record, upon which a verdict for the party holding the burden of proof can be is a question of law for the court; and it is error to refuse an instruction asked by defendant, after the testimony is closed, directing a verdict in his favor, when upon the evidence in the record, a verdict for plaintiff must properly be set aside on application. Bowman v. Eppinger, 21.

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To entitle a person to recover the highest market value between the time of the conversion of property and of the rendering of the verdict, he must affirmatively show such facts as establish clearly that he has commenced and prosecuted his action with reasonable diligence. No presumption will be indulged in his favor, and the statute will be strictly construed against him. Pickert v. Rugg, 230.

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Delay of eleven months in bringing his action, held fatal to plaintiff's claim that he had prosecuted his action with reasonable diligence, within the meaning of § 4603, subd. 2, Comp. Laws, giving him the highest market value between the conversion and the verdict, when the action has been prosecuted with reasonable diligence. Id.

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1. Assignment for benefit of creditors creates a trust. Red River Valley Bank v. Freeman, 197.

2. When one receives a deed absolute in form, but intended as security only, and with a promise to reconvey upon payment, he becomes trustee for the grantor to the extent of grantor’s interest therein. Likewise, when one receives personal property as security only, and under a promise to return the same on certain contingencies, he becomes