Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1909-03-20

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James @. Young, Respondent, VS..
Nletcalf Land Co., Appellant.
/. A contract in writing was en-
tered into between an owner of. large
tracts of land in this state and real
estate dealer, by the terms of which
the real estate dealer should have
the exclusive sale of said lands for a
period of ten years. at such prices
as he may deem best, provided, that
no tract should be sold for less than
the appraised value, named In sched-
ule a." attached to the contract.
Out of the proceeds from sales made,
a stipulated amount was to be paid
to the land owner, and the balance
equally divided between the parties
to the contract. Held: That the
dealer had the right to fix the SELL
ing price Of lands; provided, how
ever, that the prices were not less
than the appraised value, and that
the owner could not arbitrarily re-
fuse to approve the sales for the rea-
son that the prices were not salts
factory to the owner.
2. A contract must be interpret
ed so as to give effect to the mutual
intention of the parties as it existed
at the time of contracting, so far as
the same is ascertainable and lawful.
A contract must receive such an
Interpretation as will make it law
full, operative, definite, reasonable
and capable of being carried into ef-
feet.
3. The dealer having been pre-
vented by the land owner from max
ing the sales, is entitled to the prof.
its ne would have made had the Of
fers been accepted, and sales approx
ed by the land owner.
((Syllabus by the COURT.
Appeal from the district court of
Cass county; Hon. Charles A. Pol
lock, Judge.
Action by James C. Young against
Metcalf Land Co.
From judgment in favor Of
plaintiff, defendant appeals. L.
Affirmed.
L. w. Collins, Emerson H. Smith
and Engerud, Holt & Frame, for re-
spondent. -
>Koon, Whelan & Bennett and Ball,
Watson, Young & Lawrence, for ap-
pellant. l ,~, ..ss.n .-.,q. ot
Opinion by Carmody, ]. ID -
Morgan c. j., - and Fisk and,
spaulding,s J. j., concur. a Il r. II
Ellsworth. J., dissenting: I \ Is r.
T. e. lerxa, Respondent, VS. L. w.
Ruthruff, Appellant.
! Surety not released. The defend
ants, who were husband and wife,
executed to respondent promissory
note jointly and as joint makers.
Appellant signed with her husband
as joint maker, but as surety only. j:
Prior to the commencement Of this
action, her husband, the co-defend-
ant died intestate, leaving an estate
in Clay county, Mimi, Of the APP
praised value of $500, which was
duly probated in said county. While
said probate proceedings were pend
ing, and after due notice to credit
ors to present their claims against
said estate had been given, respond
ent was requested by appellants at
torney to file said not as a claim
against said estate, which he wholly
failed and neglected to do. His fail
ure to file said note as a claim
against said estate did not release
respondent as surety.
. (Syllabus by the COURT.
Appeal from the district court of
Cass county; Pollock, J.
Affirmed.
l.. Glassford & Lacy, for respondent.
J. w. Tilly, for appellant.
h Opinion by Carmody, J. All con-
cur.
+ Filed Marcel, Is.
John U. Hemn,f, Appellant, vs.. Al
zfna r.. Grover, Respondent.
\ On an appeal from an order. dis
solving an attachment, defendant
.urPes the following REASONS in SIND