The evening times. [volume] (Grand Forks, N.D.) 1906-1914, 1912-06-22
\ y 81 * e 4: :. i. # s.: =
) Supreme Court Decisions
:: 4 = :: :: s: Z: 8: s: $: !: x =, /:

ID. Fl. Ugland. respondent VS.. Farm
ers' n Merchants State Bank of
knox, and William A. Hanson. annel-
|lants. "ppe'-
l: Plaintiff u. and defendant n.
both claim to have purchased Ms,
equities in certain land held by hin,
under the usual crop payment contract
Tor deed. Defendant bank holds the
legal title in trust merely and as 60
curity for the balance due on tho MR.
chase price under an con-
tract OF sale made by the banks; gran
Tor to n. The action is for specific
performance as against defendant
oanH, n to quiet title as against de-
lendant II. The evidence discloses
mat for a valuable consideration n.
soio ana assigned in writing, with his
s[antor consent. his contract to pur-
chase. to plaintiff. but that prior
thereto defendant II. had entered into
a verbal agreement with \. for the
purchase of the title to such land or of
MS interest therein, and paid the sum
OF one dollar only on the agreed pur-
chase price. This verbal understands
ing did not authorize Fl. to enter into
possession, although he subsequently,
did. through his ervant, occupy the
buildings on the premises with rs ac.
qulescence, but under an entirely sep
arate and distinct agreement from the
alleged sales contract.
Evidence examined and held. that
the trial court properly gave Judgment
in plaintiffs favor.
:. The verbal agreement between
n. and defendant H. was never exc
cuted by either party n was within
the statute of frauds, and prior to the
plaintiffs purchase. n. r~epudiated
and abrogated the same after making
several unsuccessful efforts to get H.
tc comply herewith, and rendered
back such dollar payment.
Held. that such verbal agreement
being voidable, Ms election to declare
ii void Invested Fl. of all rights there
under. Held, further. that Ms act in
an eftectual abrogation of such void
able agreement.
3. The statute of frauds may be in
Voked not only by the Immediate par-
ties thereto, but by those in privity
with them.
A.. Held. for reasons stated in the
opinion. that plaintiff had the right
TO and did properly invoke the statute
or frauds as against the verbal con-
tract and h alleged claims of H.
Hereunder.
3. The theory adopted by the par
ties in the court below and pursuant
to which the trial was there conduct
ca. cannot be departed from for the
frst time in the supreme court.
6. On June 4, 1909, plaintiff ten
dercd to defendant bank the sum of
S2.615. being the balanc of tn pur-
chase price then due on the contract.
Such tender was in tine form of a
cashiers check instead of currency.
but no objection on this ground was
made.
Held. that by such failure to OBJ
ject. the bank. by the provisions of
Section $500. r. G. 1905. waived the
mode of such tender.
Z. Under the provisions of Rev.
Codes. Section $3.50. relating to tend
er and deposit and notice thereof. it
was unnecessary to state in sue no
tice that h bank in which such de-
post was made was Of good repute.
Nor was 1t necessary for plaintiff to
prove UGH fact. as. in the absence Of
proof to the contrary. the
ton prevails that such bank was Of
good repute.
Syllabus by the court.
Appeal from district cour Pierce
County. Burr. J.
From a Judgment in plaintiffs IA
vor. defendants appeal. Affirmed.
Opinion by Fisk. T.