contradictory of, or inconsistent with it, they will be disregarded. Johnson v. Kindred State Bank, 12 N. D. 336, 340, 96 N. W. 588. The terms and conditions of the contract imposed upon the parties were, respectively, as follows:

Upon the defendant:

1. To execute an application for a loan in this company.

2. To furnish a clear title to the property involved.

3. To pay a commission of $640 in cash, if the application was acceptable and the loan made by this company.

4. To pay of 1 per cent per annum, during the life of the loan, in cash, as commission, if a smaller loan was accepted.

Upon the plaintiff:

1. To forward the application of the defendant to this company. 2. To procure, if possible, a loan, as stated, from this company. Upon the part of this company:

1. To accept a loan on this property, pursuant to the application within ten days.

2. To make a loan thereon as soon as clear title to such property is furnished.

The complaint does not allege that the plaintiff forwarded the application of the defendant to this company; it does not allege that this company accepted a loan on this property or agreed to make a loan thereof. The complaint does not allege the name of this company, although it is clear from the contract that a loan was to be made in a certain specific company whose name at least does not appear from the face of the contract or the pleadings in this record. The complaint furthermore does not allege that the plaintiff procured a loan from this company pursuant to the contract for the defendant.

It is true that the complaint has alleged generally compliance on the part of the plaintiff with the provisions and conditions of the contract on his part to be performed. This is in accord with the statutory provision providing for a general allegation of due performance of conditions precedent in a contract. Comp. Laws 1913, § 7461. See Sifton v. Sifton, 5 N. D. 187, 190, 65 N. W. 670.

The plaintiff, however, has further specifically pleaded that he obtained for the defendant a loan for $12,800, and requested the defendant to complete said loan by executing and delivering the necessary

notes and mortgages; that the plaintiff caused to be deposited with the bank the moneys to complete said loan. The general allegations, therefore, of due performance, do not aid in supplying the necessary allegations to show full performance on the part of this company and of the plaintiff, where the plaintiff has attempted to allege what he has actually done and where such facts so alleged fall short of showing due performance. 13 C. J. 728; Pease Oil Co. v. Monroe County Oil Co. 78 Misc. 285, 138 N. Y. Supp. 185. The allegations in the complaint, that the plaintiff procured a loan for the amount of the contract, and caused a deposit to be made for the amount thereof, is far from being a compliance with the terms of the contract providing for a loan with this company. See Henry v. Sacramento, 116 Cal. 628, 48 Pac. 728; 13 C. J. 728. The complaint is further defective not only in not showing the name of this company, but also in failing to definitely allege concerning the application which by the terms of the contract may have qualified or supplemented the written contract.

The defendant in his brief has urged principally that the demurrer should be sustained for the reason that the contract by its terms provides for the payment of a commission only if the application is acceptable and the loan made. This argument is based upon the theory that no commission became due under the contract until the loan was actually made, in fact. We are of the opinion that this question cannot be determined as a question of law upon this record for the reason that the agreement itself contemplates the execution of an application and the acceptance of such application, before a loan should be made by this company. This would involve a construction of the application in construction with the agreement and the action of the company thereupon before a legal interpretation could be given to the words "loan made." It might possibly appear from the whole of such instrument and the action had that the intention of the parties concerning the use of such words would be a question of fact for the jury. See 13 C. J. 788; 9 C. J. 632, note 11. The trial court erred in overruling the demurrer. Its order is reversed.

ROBINSON and GRACE, JJ., concur.

BIRDZELL, J. I dissent.

CHRISTIANSON, Ch. J. (dissenting). I dissent. The legislature has said: "In the construction of a pleading for the purpose of determining its effect, its allegations shall be liberally construed with a view of substantial justice between the parties." Comp. Laws 1913, § 7458. It is the duty of the courts to recognize and give effect to this rule. The written agreement involved in this case recites that the defendant, Nurnberg, is the owner of a section of land upon which he desires to make a loan. And that it is "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 part 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." The complaint in this case unquestionably alleges that plaintiff fully complied with this portion of the

contract.

But the majority opinion holds that the above-quoted portion of the contract is limited by the subsequent portions which requires Nurnberg to execute a loan application, and provides that Felton shall for ward such application to the loan company. And that inasmuch as the complaint does not specifically aver that the loan application was executed by Nurnberg, and forwarded to and accepted by the loan company, and the loan made by it, the complaint fails to state a cause of action. The provision that Nurnberg should execute a loan application was clearly for the benefit of Felton. It is a matter of common knowledge that such applications contain certain questions, and require the applicant to make certain answers or representations relating to the character of the land, the amount and value of improvements thereon, and matters of that kind. Obviously the defendant cannot complain if the plaintiff procured the loan without such application. That would merely give the defendant a more favorable deal than he was entitled to. The primary object concerning which the parties contracted was the procurement by the defendant of a certain loan, at certain terms, upon certain land. The remainder were matters of detail relating to the principal object of the contract. The complaint in this

case shows that the plaintiff on his part performed what he had agreed to perform; that he obtained the loan which he was employed to obtain. In my opinion the trial court was correct in holding that the complaint stated a cause of action. The order appealed from should be affirmed.

BIRDZELL, J., concurs.

FRED C. HIEB, as Administrator of the Estate of John Hoff, Deceased, Respondent, v. JACOB HOFF, Appellant.

(179 N. W. 696.)

Executors and administrators - evidence held sufficient to sustain verdict for plaintiff.

In an action brought by an administrator to recover money loaned by the decedent to the defendant, the evidence is examined and held sufficient to support the verdict for the plaintiff.

Opinion filed October 23, 1920.

'Appeal from District Court, Bottineau County, W. J. Kneeshaw, J. Affirmed.

J. J. Weeks, for appellant.

W. H. Adams, for respondent.

BIRDZELL, J. This is an action brought by the plaintiff as administrator of the estate of John Hoff, deceased, to recover of the defendant the sum of $1,955.20, which it is claimed was loaned to the defendant by John Hoff on or about October 2, 1918. The defendant denies that the money was loaned to him. The facts disclosed by the record are as

follows:

On August 12, 1918, John Hoff and his father, Jacob Hoff, the defendant, had a transaction with one August Pranke, whereby August Pranke agreed to purchase certain personal property of John Hoff amounting to $2,600, and certain real property the record title of which was in Marie Hoff, mother of John Hoff, and wife of Jacob Hoff,

amounting to $6,400. The parties went into the State Bank of Omemee, and, after discussing their deal, called upon the cashier of the bank, N. F. Maakestad, to draw up a bill of sale of the personal property and a contract for deed covering the land. The contract for deed was signed by Marie Hoff, John Hoff, and August Pranke. The former instrument recited the payment of $2,600, but it was left in escrow with the cashier of the bank. The latter instrument called for the payment of $100 at the time of delivery of the contract, $2,300 on October 1, 1918, and the balance by instalments of $1,000 each, due November 1, 1919, and annually thereafter. The payment of $100 was made at the time the contract was entered into. On October 2, 1918, Pranke, John Hoff, and Jacob Hoff again went to the State Bank of Omemee, where Pranke paid $5,144.35, which John Hoff, the son, directed to be credited as follows: $644.35 to his own checking account and $4,500 to the credit of Jacob Hoff, the defendant. John Hoff died November 28, 1918.

The plaintiff and respondent contend that the $4,500 credited to the defendant included the larger portion of the $2,600 which was paid for the personal property covered by the bill of sale from John Hoff to August Pranke, and that John Hoff directed it to be credited to his father in pursuance of an understanding or agreement that he would loan it to him to enable him to partially clear up a mortgage on some land. The jury rendered a verdict for the plaintiff for $2,181.30, upon which judgment was entered.

The only question for consideration on this appeal is whether or not there is sufficient evidence to support the verdict. We are of the opinion that the verdict is amply supported. A witness by the name of Zarnetski testified that he had taken some part in the negotiations leading up to the deal that was consummated in August, 1918, acting for Pranke, and that he was present in the bank when the papers were executed. He is one of the witnesses to the contract for deed. He testified that during a conversation at that time between Jacob Hoff and John Hoff, Jacob Hoff indicated a desire to borrow some money to ap ply on a mortgage, stating that he did not have the money and would have to borrow it; whereupon John said that he would get money on the payment for the land and the property included in the Pranke deal, and that he would let his father have the use of that. Upon cross-ex