Page:North Dakota Reports (vol. 2).pdf/258

 maxim, ut res magis valeat quam pereat, is a safe guide. The mortgage clause gave the mortgagee immunity from certain forfeitures resulting under the policy from the mortgagor’s acts or omissions, and the mortgagee in terms agreed to pay for this immunity the premium in case of the mortgagor’s default. This is the clear import of the agreement. The court below sustained the complaint, and its judgment is therefore affirmed. All concur.

August W. Linton, Plaintiff and Respondent, v. MinnepolisMinneapolis [sic] & Northern Elevator Company, Defendant and Appellant.

Principal and Agent—Authority of Agent—Instructions. Instruction to jury held misleading, under the evidence.

(Opinion Filed Nov. 18, 1891.)

APPEAL from district court, Cass County; Hon. WILLIAM B. McConnELL, Judge.

Hall & Smith, for appellant. M. A. Hildreth, for respondent.

Action by August W. Linton against the Minneapolis & Northern Elevator Company to recover the price of certain wheat. Judgment for plaintiff. Defendant appeals. Reversed.

The opinion of the court was delivered by

Corliss, C. J. The plaintiff has recovered the value of certain wheat on the theory that defendant converted the same to its own use. The plaintiff's original ownership of the wheat is undisputed. It was drawn to the defendant's elevator by a number of men who were employed by plaintiff to assist him in threshing. The defendant’s agent having paid these men the price of the wheat, the defendant refused to pay the plaintiff therefor. Hence this litigation. The amount of wheat so drawn and delivered to defendant’s elevator and the value thereof are not in controversy. The sole question is whether plaintiff authorized these men to