The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1912-06-21
DECISIONS OF The
SUPREME COURT

In the supreme court, state Of North
Dakota, April, 1912, term.
d. H. Ugland, respondent. VS.. Farm
ers & Merchants State bank of Knox,
and William A. Hanson, appellants.
1. Plaintiff u and defendant H both
claim to have purchased Ms equities
in certain land held by him under the
usual crop payment contract for deed.
Defendant bank holds the legal title
in trust merely and as security for
the balance due on the purchase price
under a. executory contract of sale
made by the banks grantor to N.
The action is for specific performance
as against defendant bank, and quiet
title as against defendant H. The
evidence discloses that for a valuable
consideration N sold and assigned in
writing, with his ~grantor's consent.
his contract to purchase, TO plaintiff.
but that prior thereto defendant H had
entered into a verbal agreement with
N for the purchase Of the title to
such land or of Ms interest thehein,
and paid the sum of 81 only or the
agreed purchase price. This verbal
understanding did not authorize II to
enter into possession, although he sub
sequently did, through his servant, oc-
cupy the buildings on the premises
with Ms acquiescence. but under an
entirely separate and distinct agree
HELL lIOIu Tue lGSSu safes COIllEdCls
Evidence examined and held: That
the trial court properly gave judg-
ment in plaintiffs favor.
q. The verbal agreement between
N and defendant III was never execut-
ed by either party and was within the
statute of frauds, and prior to the
plaintiffs purchase. N repudiated and
~abrogated the same after making sew
eral unsuccessful efforts to get H to
comply herewith, and rendered back
such 81 payment
Held, that such verbal agreement be-
ing voidabIe, Ms election to declare ii
void Invested n Of all rights hereunder.
Held, further, that Ms act in selling
to plaintiff was, in any event, an eff
fectual abrogation Of such voidable
agreement
s. The statute Of frauds may be in
voked not only by the immediate par
ties thereto, but by those in privity
with them.
4. Held, for reasons stated in the
opinion, that plaintiff had the right
to and did properly invoke the statute
of frauds as against the verbal con-
tract and the alleged claims Of H
Hereunder.
5. The theory adopted by the par
ties in b court below and pursuant
to which the trial was there conduct
ed. cannot be departed from for the
first time in the supreme court.
6. On June 4, 1909. plaintiff tender
ed to defendant bank the sum of
$2,615, being the balance Of the pur-
chase price then due on the contract.
Such tender was in the form Of a
cashiers check instead of currency,
but no objection IN this ground was
made.
Held, that by such failure to object.
the bank by the provisions Of section
1 E0cO- ID ~ i 700E xuyofxyal thA -
such tender.
Z. Under the provisions of revised
codes. section $3.50. relating to tender
and deposit and notice thereof, 1t was
unnecessary to state in such notice
that the bank in which such deposit
was Of good repute. Nor was it
necessary for plaintiff to prove such
fact, as, in the absence Of proof to
the contrary, the presumption prevails
that such bank vas of good repute.
(Syllabus by the COURT.
Appeal from district court Of Pierce
county, Burr. ].
From a Judgment in plaintiffs ia
vor, defendants appeal.
! Affirmed.
F. T. Cuthbert Of Devils Lake, for
appellants.
i. r. Nostdal Of Rugby and Christ
hanson & Weber of Towner, N. D., for
respondent.
Opinion by Fisk, j.
Alfred F. Lands, respondent. VS..
John w. knight and Lulu knight.
appellants.
Section 1929 Of the r. c., 1905, pro-
viding for trials de novo in the su-
preme court on all appeals in cases not
properly triable with a jury, also pro-
vides that the supreme court may, If
IL, deems such course necessary to the
accomplishment of justice, order a new
trial OF the action.
Held, that where, as in the case at
bar, the record is in such condition
that an intelligent disposition of the
case in this court is rendered impos-
sible on account of the case indefinite
and uncertain state Of the testimony.
a new trial will be ordered in the dis
trict court.
(Syllabus by the COURT.
Appeal from district court, Foster
county. Burke, j..
Action in foreclosure. From a judg-
ment in plaintiffs favor, defendants
appeal.
New trial ordered.
S. e. Ellsworth of Jamestown, N. d.
for appellants.
Edward p. Kelly OF Darlington, N
d.. and Lee Coombs of Valley City
N. D., for respondent.
Opinion by Flick, j.; Burke, j., beins
L diaaualifed. did not D~articipat0.