PHYSICIANS AND SURGEONS-continued.
care, diligence, and skill, such as are ordinarily possessed by physicians
practising in similar localities in the same general line of practice. Han-
son v. Thelan, 617.
3. In an action against a physician for breach of his professional duty to his
patient, the patient cannot recover if he has not conformed to all rea-
sonable directions of his physician, or if his conduct has contributed to the
injury upon which the action is based. Hanson v. Thelan, 617.
4. In an action for malpractice against a physician for breach of his pro-
fessional duty in treating a fractured limb, where the plaintiff contracted
erysipelas as the alleged result of bandaging cloths or bandages and lacing
a shoe too tightly upon the limb of the plaintiff, and of the failure to
properly attend thereto, it is held under the evidence that the questions of
defendant's negligence, and of the plaintiff's contributory negligence, were
fairly questions for the jury. Hanson v. Thelan, 617.
1. The complaint substantially stated the value of certain property, to be $59,
the answer stated it $50. The proof showed it to be $59. Defendant dur-
ing the course of the trial, made a motion to amend his pleading to cor-
respond with the proof. He did not redraw the pleading. The court al-
lowed the amendment. The trial was had on the theory that the answer
had been amended to correspond with the proof; held that this was in ac-
cordance with the provisions of § 7482, Compiled Laws 1913. Jacobsen v.
Forbragd, 1.
2. Under the circumstances in this case, the refusal of the court to grant per-
mission to file an amended answer at the time of the trial rests upon the
principle of whether the amendment should have been allowed in further-
ance of justice. In this case, it is clear the granting of the amendment
would not have been in the furtherance of justice. The court had the dis-
cretion, under the circumstances, to either grant or refuse the amendment.
It refused it and in this there was no abuse of discretion. Williams v.
Clark, 107.
3. Where a person who has received a discharge in bankruptcy is sued on a
debt which existed at the time of the filing of the petition, the introduction
of the order of discharge makes out a prima facie defense, the burden being
then cast upon the plaintiff to show that, because of the nature of the
claim, failure to give notice, or other statutory reason, the debt sued on
was by law excepted from the operation of the discharge. Schweigert-
Ewald Lumber Company v. Bauman, 221.
4. A general objection to a certified copy of a discharge in bankruptcy, followed
by a specific objection that it has not been shown that a petition in bank-
ruptcy was filed does not raise the point that the document is not properly
or sufficiently authenticated. Schweigert-Ewald Lumber Company v. Bau-
221.
5. It is held that judgment was properly rendered in the district court of Bur-
leigh County, North Dakota, upon the California judgment sued upon, in
view of the fact that the appeal from the judgment to the Supreme Court
of California would not suspend or stay the execution or other proceedings
on the judgment, there being no stay bond executed as required by § 942 of
the Code of Civil Procedure of California relative to an appeal from a
money judgment. Ebner v. Steffanson, 229.
6. Held that the complaint in the action stated a good cause of action, and was
not demurrable. State v. Valley City Special School Dist. 464.
1. In an action to quiet title to land, where the plaintiff bases his right, title,
or interest therein upon an agreement made for legal fees in connection
with certain contest proceedings upon a homestead entry, and which pro-
vides that the attorney shall be entitled to receive an undivided one-third
interest in the land involved or the equivalent thereof in money at the option
of the parties, it is held that the agreement is a contract, executory in its
nature and not a conveyance of a right, interest, or estate in realty. Bach
v. Lyons, 25.
2. This is an action to quiet title to a quarter section of land in Ramsey county.
As the proof shows the title stands of record in the name of the defend-
ant, but the plaintiff is the owner of the land, and she and her deceased
husband have been in actual and adverse and continuous possession for over
twenty years and have paid all taxes. Hence, the title of plaintiff is
quieted and confirmed. Martin v. O'Brien, 306.
1. Under the Act of Congress of August 29, 1916, authorizing the assumption,
in time of war, of control by the President of systems of transportation, and
under the proclamation of the President issued in pursuance thereof, prima.
facie a cause of action for the alleged negligence arose and became vested
in the plaintiff prior to the passage of the Rail Control Act. McGregor
v. Great Northern R. Company, 269.
2. General Order No. 50, promulgated by the Director General of Railroads,
which requires that suits upon causes of action arising subsequent to De-
cember 31, 1917, shall be brought against the Director General of Railroads,
and not otherwise, and which authorizes the substitution of the Director
General for the carrier company as party defendant and the dismissal of
the action as to the company, is not warranted by the Rail Control Act of
March 21, 1918, in so far as it purports to be applicable to causes of action
already vested. McGregor v. Great Northern Railway Company, 269.
1. In this case actual rape by extreme force and violence is in no way essen.
tial to the plaintiff's cause of action. The complaint does charge, the evi-
dence does show, and the jury has found, that the defendant grabbed and as-
saulted the plaintiff, pulled her onto the bed, and with a strong hand over-
came her feeble power of will and resistance; that he thrust his seed upon
her, caused her to suffer the pains of childbirth and to bring into the
world a fatherless child without any support for it. That is a cause of ac-
tion. The judgment of $1,500 is righteous, just, and moderate, and it is
affirmed. Bye v. Isaacson, 417.
1. Where an instrument affecting real property is required by the Recording
Acts to be recorded in the office of register of deeds in the county where
the real property is situated in order to be notice to subsequent purchasers
for value, and there is a further requirement by law that when such instru-
ment is deposited with the register of deeds for record he may require the
payment of the recording fee in advance, held that the depositing of the
instrument with the recording fee unpaid with the register of deeds for
record and the same is not entered upon the reception book or spread at
length upon the record, does not constitute the recording of the instru-
ment so as to be constructive notice to subsequent purchasers for value
until the required recording fee is paid. Held, further if the instrument
is deposited for record, and at that time the required recording fee is not
paid, and the instrument is recorded by being entered in the reception
book or spread at length upon the record, it will be constructive notice to
subsequent purchasers for the value even though the recording fee is not
paid at the time of depositing the instrument for record. Hanson v. John-
son, 431.
RESCISSION. See CONTRACTS.
1. Where the owner of a harness claimed to have sold it on the 22nd day of
April, 1915, and took a mortgage back from the purchaser on the harness,
and claimed to have filed it on the date of the sale, and another took a
mortgage on the same harness dated April 20, 1915, and claimed to have
seen the harness in the possession of the mortgagor prior to the date of his
mortgage, the question of the priority of the mortgages was a question
of fact for the jury. The jury having returned a verdict for the defend-
ant and judgment having been entered thereon, it is held that such judg
ment is supported by the evidence. Jacobsen v. Forbragd, 1.
2. In an action to recover the purchase price of certain potatoes at the con-
tract price of $.50 per bushel, we hold that the evidence shows a delivery by
the plaintiff to the defendant of the potatoes; that plaintiff is entitled to
recover the contract price of the potatoes so delivered. Fossum v. Halland,
18.
3. The defendant claimed the potatoes were not marketable and were frozen.
They did not, however, set forth any counterclaim in their answer, thus, if
there were delivery of the potatoes, defendants were liable for the contract
price. Evidence shows the delivery. Fossum v. Halland, 18.
4. In an action brought to obtain possession of personal property transferred to
the plaintiff by a bill of sale, where the plaintiff had gained possession un-
der claim and delivery proceedings, and the defendant counterclaimed,
setting up a cause of action for damages for misrepresentation and fraud
affecting the consideration that supported the bill of sale, and in addition
to his claim for damages asked for specific performance of the contract as
alleged in the counterclaim, it is held: (1) The election to affirm the con.
tract, to obtain specific performance, as far as possible, and to recover
damages, amounts to an admission of the plaintiff's right to possession un
der the bill of sale. (2) Where the pleadings present no issue of fact
upon which the plaintiff's right of possession depends, error is not com-
mitted in instructing the jury to find that the plaintiff is entitled to pos-
session. (3) Where the plaintiff had possession of the property in ques-
tion at the time of the trial, and where the pleadings admit the right of
possession, under § 7635, Compiled Laws of 1913, it is unnecessary to sub-
mit to the jury the question of the value of the property. (4) Sections
7449, 7453, 7605 and 7679, Compiled Laws of 1913, concerning counterclaims,
are considered and held to authorize the entry of an appropriate judgment
in a possessory action, while issues upon which the defendant's counter-
claim for damages is based remain undetermined. Johnson v. Wagner, 542.
SCHOOLS AND SCHOOL DISTRICTS.
1. Where a consolidated school is formed and a site chosen by the electors of
the district, acting under § 1190, Compiled Laws of 1913 such school
cannot be removed from the location so selected without a two-thirds vote
of the electors, proceeding under §§ 1184 and 1185 of the Compiled Laws
of 1913. Torgerson v. Golden Valley School District, 5.
2. The order of exclusion is reasonable. Martin v. Craig, 213.
SCHOOLS AND SCHOOL DISTRICTS-continued.
3. Section 142 of the Session Laws of 1915 provides that all students attend-
ing any model high school, graded or elementary school, which is operated
and maintained or in any manner connected with the State University, any
normal school publicly maintained educational institution of higher learning
in which model high, graded, or elementary school, members of the faculty
or of student body of such university, normal school, or institution of higher
learning, teach, there shall be paid by the school district in which said
pupils reside to said institution as tuition for such attendance certain
amounts named in the law: held that such law is not unconstitutional.
State of North Dakota v. Valley City Special School District, 464.
4. It is further held that the normal school is part of the free public school
system of North Dakota and is defined as such in § 148 of our Constitu-
tion. State v. Valley City Special School District, 464.
5. Upon appeal from an order denying the plaintiff's motion for an injunc-
tion pendente lite to restrain performance of certain contracts entered into
between the defendant school district and certain contractors looking toward
the construction of a new school building, it is held: Sections 1184, 1185
and 1190 of the Compiled Laws of 1913 and Chapter 127 of the Session
Laws of 1915, authorize the questions of consolidation of schools, the selec-
tion of sites, and the building of new buildings, to be determined exclusive-
ly by the voters in common school districts. Iverson v. Williams School
District, 622.
6. A temporary injunction will not issue where it is not reasonably apparent
that it will serve some useful purpose. Iverson v. Williams School District,
622.
7. Where, subsequent to the bringing of an action for injunction to restrain
the performance of a contract, it appears that action has been taken by the
voters of a district remedying the defect complained of, and where no in-
jury is alleged to have been caused prior to the removal of the alleged de-
fect in the proceedings looking toward the construction of a school build-
ing, the reversal of an order denying a preliminary injunction would serve
no useful purpose. Iverson v. Williams School District, 622.
8. Where an election results in a failure to select a site by reason of the in-
definiteness of the question submitted, and the question is again sub-
mitted, resulting in the selection of the site previously assumed to have
been legally selected, the previous invalid selection is ratified. Iverson v.
Williams School District, 622.
SET-OFF AND COUNTERCLAIM.
1. In an action brought to recover the purchase price of certain fixtures de-
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