This is an action to recover moneys paid or due under a rescinded contract. The parties were joint owners of a platted town-site, and certain acreage adjoining, in Brantford, North Dakota. The defendant owned certain bank stock of the Security State Bank, of which he was president. The Farmers State Bank, a competing bank, desired to secure the stock in the Security State Bank. It had negotiations with the plaintiff concerning the matter.
In December, 1917, the plaintiff and the defendants made a written contract wherein the defendant agreed to sell and convey to the plaintiff his one-half interest in the remaining lots of the townsite and in the acreage adjoining; he also agreed to sell to the plaintiff 100 shares of his bank stock, at book value on January 1, 1918. The consideration stated for the one-half interest in the lots was $50 per lot for the 25 ft. lots and $25 per lot for the 50 ft. lots; for the acreage $1,400; for the good will of the banking business $1,000; a payment down of $5,000 in cash, was stipulated. This amount was paid by the plaintiff after some changes were made in the written contract, such as changing the amount of the cash payment from $10,000 to $5,000; the consideration of the acreage from $1,500 to $1,400; the time of occupancy of defendant’s bank building from July 1, 1918, to May 1, 1918;
On January 2, 1918, the plaintiff, with an accountant, appeared at defendant’s bank for the purpose of making settlement, pursuant to the contract. In considering the amount to be paid, a dispute arose upon the provisions of the contract, providing for the payment of the one-half interest of the defendant in the townsite lots, and acreage at so much per lots, and at a stated amount for the acreage. The defendant immediately stated that the amount as stated in the contract was the amount that he was to receive; the plaintiff maintained that the amount stated was the total lot or acreage value and should be divided by two; that this would then represent defendant’s undivided one-half interest therein. Apparently, by reason of this difference between the parties, this law suit has arisen. The defendant insisted that he was entitled to receive what his contract stated. The plaintiff withdrew; he prepared, in writing, a tender of performance, and served the same that day upon the defendant. In addition to these matters, the parties owned, jointly, a house and lot in Nebraska, three lots in the town-site mentioned occupied by plaintiff’s buildings, and an interest in three contracts of sale for lots.
Prior to this time and after making the written contract, the defendant had conveyed his undivided interest in these three lots to the plaintiff; the defendant had also inserted his name as grantee in a blank deed possessed to the Nebraska property; the plaintiff had assigned his interest to the defendant in the lot contracts. The agreement concerning these properties rested in parol. The plaintiff maintaining that these agreements of transfer of such properties was orally made outside of the written agreement, upon the understanding that the plaintiff would receive the difference between the value of the properties conveyed and received by him. The defendant maintains that the independent oral agreement was made for the transfer and exchange
This action, accordingly, was brought to recover from the plaintiff the sum of $5,000 and the amount of his interest in the Nebraska property, and the lot contracts, less the value of defendant’s interest received in the three lots conveyed by him tó the plaintiff. The action was tried to a jury. A verdict was returned for the plaintiff for $5,000, the consideration paid, $600 for the Nebraska property, and $150 for the contracts, less $75, together with interest thereupon. From the judgment entered upon this verdict, the defendant has appealed.
The defendant specifies error principally upon the grounds that the trial court erred in permitting oral testimony to be introduced to explain the written agreement concerning the amount to be paid the plaintiff for the lots and acreage, and in submitting the case to the jury, in opposition to his motions, concerning such testimony, and concerning the failure of the evidence to show a proper tender of performance or offer of performance on the part of the plaintiff.
At the close of the case the parties stipulated the book value of the bank stock. The amount of the verdict concerning items other than the $5,000 item is not controverted. The specifications concern alone, the $5,000 item as awarded through the verdict of the jury.
The trial court upon fair instructions submitted to the jury the question of fact involved. The jury by its verdict found adversely to the contentions of the defendant.
It is considered immaterial in this case, whether the contract is to be deemed to express on its face, an agreement for a total lot or acreage value payable to the defendant, or an amount equal to one half thereof, or whether it is ambiguous in that regard.
Upon the question of performance, the trial court properly submitted to the jury the issues as to whether the plaintiff had made a proper offer or tender of performance, or was justified, in view of the acts of the defendant, in being excused from making any offer of performance. Oomp. Laws 1913, § 5821. The judgment of the trial court is in all things affirmed.