for some reason, he broke with the League and became the leader of the opposition. He spent several months-a great part of his time-going over the state making speeches and denouncing the League managers and the defendants. Of course the abuse and denunciation became mutual and reciprocal; it became much the same as when two boys go onto the street and commence a contest of slinging mud at each other, and the one who gets the worst of it commences to cry and runs home to mama. There is nothing in the alleged libel which tends to expose Mr. Langer to hatred, contempt, or ridicule, nothing which caused him to be shunned, or which lost him a vote in the race for governor. The libel in question did not injure him to the amount of one cent. If anything, it was a benefit to him, because it advertised him, and, like most politicians, he is fond of seeing his name in print and on the headlines of the newspapers.

It is true that in libel suits decisions can readily be cited on any side of any case. It is true that judges are still disposed to follow a line of decisions which were given when conditions were very different. Time was when newspapers were few, and when political abuse or mudslinging was not a daily occurrence, when an editorial in a newspaper was considered as true as Holy Writ; but of late newspapers have become about as numerous as trees in the forest. Daily papers of eight pages are issued and filled with advertisements, telegrams, political notes, and political abuse. It is so common that few people are so foolish as to give any credence to anything in the line of political abuse. And in this case the libelous article shows on its face that it was merely given as the guess or conjecture of the editor. It did no injury to Mr. Langer; it did not call him a rascal of any type, or impute to him the unpardonable sin or any danger of being damned. In the light of plain common sense, common usage, and common knowledge the complaint does not state a cause of action.

GRACE, J. (dissenting). The complaint states no cause of action for libel. It is clear, and it will be conceded that, by no stretch of imag ination, can the articles published be held a libel of the plaintiff, either in his official, professional, or individual capacity; and that the article, or articles, standing alone, are not libelous, and will not support a cause of action.

We think every member of the court would agree to what has been said if it were not for the alleged innuendoes pleaded. We are of the opinion that the alleged innuendoes in explanation of the language used in the articles do not result in stating a cause of action.

"But an innuendo must not introduce new matter or enlarge the nat ural meaning of words. It must not put upon them a construction which they will not bear. It cannot alter or extend the sense of the de famatory words, or make that certain which is, in fact, uncertain." Newell, Slander & Libel, 3d ed. 755. See cases cited in note 40. "The office of the innuendo is to aver the meaning of the language published. Therefore, if the meaning of the language is plain, no innuendo is needed. The use of it can never change the import of the words, nor add to or enlarge their sense.'

Chief Justice Shaw states the law as follows: "The law proceeds on the hypothesis that what is the ordinary meaning and nature and intrinsic force of language is a question of law. When, therefore, words are set forth as having been spoken by the defendant of the plaintiff, the first question is whether they impute a charge of felony or any other infamous crime punishable by law. If they do, an innuendo undertaking to state the same in other words is useless and superfluous; if they do not, such an innuendo cannot aid it. It therefore often happens that where innuendoes are added, which do alter and vary and even inflame and exaggerate the sense of the words much beyond their natural force and meaning, yet such innuendoes are held not to vitiate the declaration. "The reason of which I take to be this: The words themselves imputing an infamous offense, the innuendo may be rejected as surplusage; and as the plaintiff is not allowed to go into evidence aliunde, to show that the words were, in fact, used in the sense imputed by the innuendo, they can have no influence whatever. But, if the words do not impute such infamous crime, by their natural sense and meaning, then, as a general rule, the plaintiff is not entitled to recover, and, as he cannot enlarge that meaning by an innuendo, so as to let in proof of extraneous facts, his action must fail." Newell Slander & Libel, p. 756.

The decision of the majority, as I view it, is a long step in the direction of the destruction of a free press. If such mild expressions as useď in the articles complained of may be made the basis of libel suits, when

46 N. D.-29.

clearly such articles are not libelous, soon it will be that every editor, publisher, or owner of a newspaper will be deterred from the mildest criticism of any person, public officer, or candidate for public office, for fear of endless litigation which may be brought against him, and enormous expense which is thereby likely to be heaped upon him.

B. F. FELTON, Respondent, v. HERMAN NURNBERG, Appellant.

(179 N. W. 720.)

Pleading terms of written agreement annexed control allegations on demurrer; averments inconsistent with writing disregarded.

1. Where a written agreement is incorporated as a part of a complaint, its terms control and determine the sufficiency of the complaint as against a demurrer in every particular, where the contract terms do not sustain the allegations of the complaint as to its contents, and where the averments are contradictory of, or inconsistent with it, they will be disregarded.

Brokers complaint in action for commission for making loan held not to show full performance of broker or of loan company.

2. In an action on a contract to recover commissions due for making a loan, where the complaint alleges due performance of the conditions precedent on the part of the plaintiff to be performed, and, further, specifically alleges specific acts of performance by the plaintiff, and where, under the terms of a written agreement incorporated in the complaint, conditions precedent are required of the plaintiff, and also of a specific loan company mentioned therein, and where, further, the facts as alleged fall short of showing due performance, it is held that the general allegations of due performance do not aid in supplying the necessary allegations to show full performance on the part of this designated company, or of the plaintiff.

Opinion filed October 23, 1920.

In District Court, Stutsman County, Cole, J., to recover commissions due for making a loan. From an order overruling a demurrer to the complaint the defendant has appealed.

Reversed.

John A. Jorgenson, for appellant.

Where one agrees with another to pay a sum of money or to do a

thing, and no time is mentioned for the performance of such agreement, the law presumes that the money shall be paid, or the thing done within a reasonable time. Brown v. Brown, 103 Ind. 23, 2 N. E. 233; Urquhart v. Belloni, 57 Or. 314, 111 Pac. 692; Liliengren Furniture & Lumber Co. v. Mead (Minn.) 44 N. W. 306. Citing Stone v. Harmon, 31 Minn. 512, and Driver v. Ford, 90 Ill. 595.

Parol evidence is not admissible to show that it was intended that payment of a mortgage should be made only out of a certain fund. Carlton v. Vineland Wine Co. 33 N. J. Eq. 466; Sangston v. Gordon, 22 Gratt. 755; Neale v. Albertson, 39 N. J. Eq. 382.

John W. Carr, for respondent.

The term "cash" as used in this agreement means money in hand at the time as opposed to credit. 11 C. J. 20; Palliser v. United States, 34 L. ed. 514, 10 Sup. Ct. Rep. 1034.

Oral evidence is admissible where the contract is silent, unless the oral evidence contradicts or is inconsistent with the terms of the written contract. DePue v. McIntosh (S. D.) 127 N. W. 533; Putnam v. Prouty (N. D.) 140 N. W. 93; Erickson v. Wiper, 33 N. D. 193.

BRONSON, J. This is an action on a contract to recover commissions due for negotiating a loan. The defendant has appealed from an order overruling a demurrer to the amended complaint. The contract incorporated in the complaint, and upon which the action is based, reads as follows:

"This agreement is made for the purpose of procuring for Herman Nurnberg a loan upon his section 9, township 140, range 64.

"It is hereby mutually agreed between B. F. Felton, party of the first part, and Herman Nurnberg, party of the second part, that the said party of the first part is to procure if possible, for the party of the second, a loan for the sum of $12,800 on the above-described land for a period of five years, with interest at 6 per cent per annum payable annually. And if the party of the first part is successful in obtaining the above loan, the party of the second part agrees to pay the party of the first part the sum of $640 cash for his services in procuring said loan.

"Said second party is to execute application this day, and first party is to forward it to this company, and if acceptable and loan made by

the said company, then this amount to be due the said party of the first part from the party of the second part. If not acceptable, then and in that event the said party of the second part is in no wise indebted to the said party of the first part. Unless a smaller sum is accepted by the said party of the second part, in that event the said party of the second part is to pay the party of the first part, one half per cent per annum during the life of the loan in cash.

The loan company described in the application is to accept or reject application within ten days from this date; and in case they accept of this application, it is hereby mutually agreed between the parties hereto, that the said loan is to be made as soon as clear title is furnished by the second party hereto, and if it is not made within the time specified, this agreement is to be null and void."

In connection with this contract, the complaint further in substance alleges an oral agreement to pay a cash commission of $640 to be deducted from the loan, at the time the plaintiff furnished the money with which to make the same. Further that plaintiff obtained a loan for $12,800 at 6 per cent for five years payable annually, and requested the defendant to complete the loan by executing and delivering the necessary notes and mortgages; that the defendant declined to make such notes and mortgages and refused to carry out the written contract; that, notwithstanding that plaintiff had caused the moneys to complete such loan to be deposited in a bank on delivery upon compliance by the defendant with his part of the contract, the defendant refused to perform any part thereof.

The complaint further alleges that the plaintiff has complied with all of the provisions and conditions of the contract on his part to be performed, and that the defendant has wholly failed to perform, and that there is due the plaintiff $640.

Does the complaint state a cause of action? The complaint seeks to recover the consideration specified in the contract upon allegations of full performance of the provisions and conditions thereof on the part of the plaintiff to be performed. The terms of the written agreement control and determine the sufficiency of the complaint as against the demurrer made in every particular, where the contract terms do not sustain the allegations as to its contents, and where the averments aro