426; Justice v. Lang, 42 N. Y. 493, 1 Am. Rep. 576, reversing 2 Rob. [N. Y.] 333, 30 How. Prac. [N. Y.] 425; Tilt v. La Salle Silk Mfg. Co., 5 Daly [N. Y.] 19; 9 Cyc. 300). in favor of the plaintiff, but ordered that the action should be retained in equity for further proceedings to allow such plaintiff to establish his claim for damages. This socalled interlocutory judgment was filed on The only question to be determined, then, the 20th day of September, 1912. Later the is whether the contract was signed by the plaintiff filed a supplemental complaint, and company itself or was partly performed so the case was tried on the question of damages as to be taken out of the statute of frauds before the court and a jury at the January, and to render an action for damages or for 1912, term of the court, and a verdict was specific performance maintainable. On this rendered in favor of the plaintiff for the sum point there is no question that the plaintiff's of $1,850. The trial court then entered judg-agent gave to the vice president of the comment on this verdict, and the defendant has pany a check for $500 at the time of the appealed. P. D. Norton, of Hettinger, and John Carmody and Karl L. Hjort, both of Hillsboro, for appellant. E. C. Wilson, of Hettinger, and Amos N. Goodman, of Aberdeen, S. D., for respondent. BRUCE, J. (after stating the facts as above). [1] Although the trial before the jury was held some time after the hearing before the court, and the proceedings were treated in many respects as two independent actions, there can be no question that the hearing before the jury was held under the order of the court in the preliminary equity case, and that the verdict of the jury was nothing more or less than an advisory verdict of a jury which is rendered in a suit in equity. [2] The first point raised by appellant is that the contract of sale, which is the foundation of the cause of action, does not conform to the requirements of the statute of frauds, being section 5407, R. C. 1905 (section 5963, Compiled Laws of 1913), in that it is signed, as far as the plaintiff is concerned, "C. E. Merritt, by Chas. Bigham, His Agent," and that there is no proof of any authority in writing to the said Bigham, and that such is required by section 5407, R. C. 1905 (section 5963, Compiled Laws of 1913), which provides that: "No agreement for the sale of real property or an interest therein, is valid, unless the same, or some note or memorandum thereof, is in writing and subscribed by the party to be charged, or his agent thereunto authorized in writing; but this does not abridge the power of any court to compel the specific performance of any agreement for the sale of real property in case of part performance thereof." [3] It is to be noticed that the statute merely speaks of an agreement to sell; and the agreement to sell, which is sought to be enforced in this case, was all that seems to have been required by the statute to have been authorized in writing. It is well settled, indeed, that not only is a contract sufficient and enforceable if executed by the party sought to be charged (see Morin v. Martz, 13 Minn. 191-193 [Gil. 180, 182]); but it has also been held that a contract of sale, if accepted by the buyer, is not wanting in mutuality because it is signed only by the sel making of the contract; that that check was made payable to the Adams County Land & indorsed "Adams County Land & Investment Investment Company, and that later it was Co., by A. A. Jackson, V. P. and Gen. Mgr."; and that, though the defendant company claims that it never received the proceeds thereof, it was paid to its representative and vice president. There is no claim that the money has ever been returned or offered to be returned; the extent of the offer being that the company would get A. A. Jackson to return the money. It, on the other hand, seems to be clear that A. A. Jackson was given no specific authority, either by the charter or by-laws, to sell land, and that the usual practice seems to have been (which practice, however, does not seem to have been generally known in North Dakota nor by the plaintiff) for land to be sold on a resolution of the board of directors. [4] The only question, therefore, to be determined is whether A. A. Jackson had such ostensible authority that the plaintiff was justified in dealing with him and in purchasing land from him and making the payment to him in question. It really resolves itself around the question as to whether he had the ostensible authority to receive the money, even though not to execute any specific contract of sale, as no effort seems to have been made to return the money. The case at bar seems in many respects to be analogous with that of Grant County State Bank v. Northwestern Land Co., 150 N. W. 736, and we are quite satisfied, both under the holding in that case and of the authorities generally, that the plaintiff should be allowed to recover in the case at bar. Section 5770, R. C. 1905 (section 6338, Compiled Laws of 1913), defines "ostensible authority" to be: "Such as the principal intentionally or by want of ordinary care causes or allows a third person to believe the agent to possess." There is no question that, if the by-laws or charter had so provided, the witness A. A. Jackson would have been the proper party to have made the contract and to have received the money. Whether general manager or not, according to the understanding of the directors of the defendant corporation, he styled himself as general manager in North Dakota, and was known by the bank with which he dealt, and with which the company of Hadley v. Baxendale, 9 Exch. 341, and which has been generally followed by the American courts, and which is emphasized in North Dakota by section 6563, R. C. 1905, now section 7146, Compiled Laws of 1913 (see Needham v. Halverson & Co., supra), would apply in a case such as that before us (see Guetzkow Bros. v. Andrews & Co., 92 Wis. 214, 66 N. W. 119, 52 L. R. A. 209, 53 Am. St. Rep. 909, and valuable note thereto in 52 L. R. A. 209). [8,9] The question is not briefed or discussed with any thoroughness, and we believe it would be unwise to pass upon it in its entirety here. It is sufficient, however, to say that in the case at bar this measure of damages can have no footing, and the latter part of section 6563, R. C. 1905 (section 7146, Compiled Laws of 1913), is conclusive. This paragraph provides that: officer or agent of the company in North | and in the case of special damages, which Dakota, and he was certainly vice president have or should have been foreseen at the time of the company. There is much conflict in of the making of the contract of sale, may the authorities, it is true, as to the duties also be relied upon (see Needham v. Halverof a vice president. Generally speaking, such son & Co., 22 N. D. 594, 135 N. W. 203), also an officer acts in the absence of the president. whether, such being the case, the rule of damThe president, in the general acceptation, isages which is announced in the leading case the general executive officer. It is no abuse of power or of a sound public policy to hold that when a corporation chooses to incorporate under the laws of North Dakota in order that it may deal in lands in North Dakota and obtain the protection of the courts and of the laws of the state, both as to its contracts and to its property, and where the laws of North Dakota, loose and liberal though they may be, require that the principal office of the corporation shall be located in the state, that a third party has the right to believe that the vice president of the company, when acting in the town, if not in the building, of the principal place of business and in the office of the attorney of the company, and in relation to a sale of the land of the company for the purpose of buying and selling which the company alone was incorporated, is authorized by the by-laws to make such contract of sale, and that when' such officer tells such third party, upon express inquiry, that he has such authority, and the third party relies upon such statement, and not only pays $500 but obligates himself on a contract with still another party on the reliance therewith, and of which fact he informs the vice president, such purchaser has the right to believe in the statement of the vice president and to pay the money on the strength of such belief, and, when the vice president receives the money, he receives it for and on behalf of the company he represents. Nor do we think that this ostensible authority is weakened by the fact that the attorney who drew the papers suggested to the plaintiff's agent that it would be well to send them to Indianapolis for approval; it being shown by the evidence that on and after such statement Jackson, the vice president, positively assured the plaintiff of his authority and of the validity of the agree ment. Grant County State Bank v. Northwestern Land Co., supra. [5, 6] It is unnecessary for us to examine the numerous objections to the admission of testimony in this case, including the testimony as to the subagreement by the plaintiff to sell the land in question to Gottlob Hoffman and the loss of profits which he suffered on account of the failure of the defendant to convey the land to him, and thus to make a reconveyance by him possible. A nice question of law is presented by these objections, both as to whether the damages provided for by section 6568, R. C. 1905, now section 7151, Compiled Laws of 1913, are exclusive of all others, or whether the damages provided for the breach of a contract in section 6563, R. C. 1905, now section 7146, Compiled Laws of 1913, may in special instances "No damages can be recovered for a breach of contract which are not clearly ascertainable in both their nature and origin." It It merely restates the common law. must be taken and construed in connection with the general rule that the law abhors uncertainty and speculation, and that where there are two methods of proving damages, one of which is certain and the other of which is uncertain, the former will be adopted. In the case at bar it is shown that though a contract for resale had been made by the plaintiff Merritt with one Gottlob Hoffman before the making of the agreement with the Adams County Land & Investment Company, and that the making of this agreement was known to the vice president of the Adams County Land & Investment Company at the time of the making of the later contract, and that said vice president knew that the land was sought to be purchased for the purpose of meeting the terms of this agreement, this subagreement embodied a trade of lands, and that the real value of those lands is neither clearly proved in the case at bar, nor was their value known to the said vice president. The proof, in short, of the damages which were occasioned by the loss of the subsequent sale, are not merely indefinite, but it also can hardly be said that the vice president in question had or should be presumed to have had sufficient knowledge of the attempted transaction (that is to say, of the trade of the lands as opposed to a mere sale for cash), as would under the construction of section 6563, R. C. 1905 (section 7146, Compiled Laws of 1913), and of the case of Hadley v. Baxendale, supra, make it fair to presume that he anticipated or could have anticipated the value thereof. [7] The rule of damages, therefore, in the case at bar, must, in any event, be that which is laid down by section 6568, R. C. 1905 (section 7151, Compiled Laws of 1913), and which is: "The difference between the price agreed to be paid and the value of the real estate agreed to be conveyed at the time of the breach and the expenses properly incurred in examining the title with interest thereon, and in preparing to enter upon the land and the amount paid on the purchase price, if any, with interest thereon from the time of the purchase." This conclusion, however, does not necessitate a new trial or a reversal of the judgment, even though we concede that some of the evidence that was introduced was inadmissible. The action before us is a suit in equity and comes before us for a trial de novo. The verdict of the jury was merely advisory, and the errors in the admission of evidence, if any, do not necessarily interfere with us here, and we are quite sure that they did not interfere either with the correct judgment of the jury or of the trial court. The learned trial judge positively and correctly instructed the jury that their estimate of damages should be solely based upon the difference between the market value of the land contracted for by the plaintiff and the price which he had agreed to pay therefor, added to which must be, if they found for the plaintiff, the original $500 payment, for which no consideration was received. The The judgment of the district court is affirmed. CHRISTIANSON, J., did not participate in the foregoing opinion. On Petition for Rehearing. BRUCE, J. A petition for rehearing has been filed, which, among other matters, calls attention to the fact that the writer of the opinion erred in saying that: "The case before this court is a suit in equity on a trial de novo under section 7846, Compiled Laws of 1913, and in assuming therefrom that the errors in the admission of evidence before the jury, if any, were immaterial." [10, 11] Counsel is correct in his criticism that the writer of the opinion did err. He, in fact, overlooked the prior opinion of this court in Peckham v. Van Bergen, 8 N. D. 595, 80 N. W. 759, in which we held that: "In an equity case, where the district court calls in a jury for advisory purposes, the trial 5630, R. C. 1895, as amended by chapter 5 of is not governed by the provisions of section the Laws of 1897 (being section 7846 of the Compiled Laws of 1913); nor does this court try such cases anew. That statute applies only to such cases as are tried in the district court without a jury." We have therefore stricken the clause from the original opinion, so that one reading that opinion, and failing to read the words just written, will not be confused thereby. The judgment of the trial court and the verdict fact, however, in no way changes the opinof the jury, on which it was based, was for ion or conclusion of this court in the case at the sum of $1,850, and this allowed, after de- bar. The court, in Peckham v. Van Bergen, ducting the $500 and interest thereon, some supra, expressly stated that though in such $1,300 for the difference between such concases the verdict of the jury is entitled to tract and market price. The price which was receive grave consideration at the hands of agreed to be paid, for the land was about the trial courts, and such juries are not called $16.25 per acre. The testimony as to the acas a mere formality, their verdicts can be tual value of the land runs all the way from set aside, if clearly wrong. It would follow $14 to $25 per acre. The verdict of the jury that if their verdicts are clearly right, and, allows a value of about $18.35 per acre. This even though incompetent evidence may have is satisfactory to us, and we see no reason been admitted, it is quite clear that the jury for overruling the judgment of either the was not misled thereby, or, at any rate, that trial court or the trial jury in relation to their advisory verdict is in accordance with the matter. Even though the allegation and the law, the mere fact of the introduction of proof of special damages may have been im- such incompetent evidence will not justify proper and insufficient, proof of the gen- the ordering of a new trial. Such, we beeral damages allowed by section 7151, Com-lieve, is the case in the action before us. piled Laws of 1913, was permissible under Counsel also criticizes the statement of the general allegation of damages which is to be found in the complaint, and not only was the jury instructed on this basis, but the trial was largely had upon this theory. See 19 Enc. Pl. & Pr. 80; Partridge v. Blanchard, 23 Minn. 69. We may close by adding that it is idle to say that the company did not know of the payment of the $500. The knowledge of a vice president of a North Dakota corporation, who is the only officer in the state, and who is transacting the business of such company, which is the buying and selling of land, and which is acquired in such a transaction, is the knowledge of the company itself. Grant County State Bank v. Northwestern Land facts made by this court, and in which it said that the vice president told the plaintiff "upto make the contract," and calls our attention on express inquiry that he had the authority to the fact that, at the moment the contract was executed, all that the vice president did was "with a wave of the hand to say that it was all right as it was." He, however, ignores the fact that the plaintiff positively testified that: "At the time the contract was drawn I walked out with Mr. Jackson and had a conversation with him. I told him then, after you [the attorney, Mr. Norton] spoke to me about there thority, you intimated something along that line. was some question in your mind as to this auI talked with Mr. Jackson, and I told him and the three persons interested have given their recollection of this conversation. Jack son says: this land with a party, and we made a provi- | with defendant relative thereto. This consion allowing ten days in case we couldn't de-versation was in the presence of Mrs. Lind, liver the land; that it was not binding upon us; and I told him at that time that I wanted to be sure and certain about his getting this land to us by the 1st of March. There was some incumbrance on the land, and I asked if "I was going over the books at Warwick, he would see to having that paid up and hav- when I saw this account, which I had not seen ing his abstract of title brought down to date, before, and I asked Lind what it was, and how so that the deal could be closed on the date he happened to have charged so much material payment became due, and he assured me that to himself. He replied that he had taken it out everything would be all right; that he was vice to build a house. I asked him if he had obtainpresident and general manager, and had author-ed the consent of any one in authority to sell ity to accept money and to make out contracts, this material to himself, and he replied that he and he had previously stated those things to had not done so, but that he was intending to me, and the fact that he had charge of the out- do so, and he said that he was also intending to fit out there-I had been out to call on him a find out if an arrangement could be made for couple of times before the contract was made." allowing him a reasonable discount on the bill The petition for a rehearing is denied. Evidence examined, and held, that the agent of the plaintiff company made an agreement within the scope of his authority, whereby defendant was to have a 25 per cent. discount from list prices upon the goods bought by him from plaintiff. [Ed. Note.-For other cases, see Corporations, Cent. Dig. 88 1717, 1718, 1724, 1726-1735, 1737, 1743, 1762; Dec. Dig. 432.] 2. CORPORATIONS AGENT EVIDENCE. 432 CONTRACT BY OF for cash. his farm if the crop was not sufficient to pay for it." Mr. Lind, upon his part, testifies: write to the company and ask them whether you "Q. Prior to getting this stuff, you did not could have it or not? A. I spoke to the superintendent. Q. Mr. Taylor? A. Mr. Taylor. It was quite a time before Mr. Bovey-Q. He is a traveling auditor of the company? A. Mr. Bovey was there himself quite a while before I built, and Mr. Taylor says- Q. I just asked you a question, and you have not answered it, you see. A. All right. Q. And you made the entries on your yard sheet, as you bought the material, didn't you? A. Yes, sir. Q. And had you forwarded any of those to the company prior to the time Mr. Jackson came out? Yes, sir; a report going in every day-every * Q. Now, was it their custom to allow discounts when they carried a man on an account-open acAction by the Bovey-Shute Lumber Com-count-that way? A. Yes, sir. Q. All persons? pany, a corporation, against C. E. Lind. From judgment for defendant, plaintiff appeals. Affirmed. The evidence further shows a ratification of such agreement by the officers of the company. [Ed. Note.-For other cases, see Corporations, Cent. Dig. $8 1717, 1718, 1724, 1726-1735, 1737, 1743, 1762; Dec. Dig. 432.] Appeal from District Court, Ramsey Coun- week anyway-twice a week. ty; Leighton, Judge. R. A. Stuart, of Minnewaukan, for appellant. R. Goer, of Devils Lake, and Miller & Zuger, of Bismarck, for respondent. BURKE, J. Plaintiff is a corporation in the general lumber business, having a line of yards in this state, one of which is at Warwick, and was managed by the defendant Lind during the times hereinafter mentioned. Between July and November, 1911, defendant built a house in the village, taking the lumber from his yard and charging himself therewith at list prices. Every day, or at least twice a week, statements of the business done at the yards were forwarded to the company. It seems to have been understood that agents of the plaintiff company should receive a discount, at least for cash purchases made by themselves. Plaintiff's traveling auditor, Jackson, went to Warwick during that month and had a conversation * * A. A. All? No; not all persons, but-* Mrs. Lind testifies: "Q. You may state, Mrs. Lind, if you were in the office of the Bovey-Shute Lumber Company at Warwick on or about September 20, 1911. A. Yes; I was in the back there. Q. You lived in the office at that time, didn't you? A. Yes; we lived there. Q. You may state now, Mrs. Lind, whether or not at that time and in that conversation you heard Mr. Jackson tell your husband that he would allow him a discount of 25-any amount-on certain material that your husband had purchased from the plaintiff. A. Yes; I did. Q. You may go on now and state the circumstances of the conversation as you remember it. A. Now they were going through the ledger, and Mr. Jackson asked Mr. Lind- As they were going through the accounts, Mr. Jackson said, 'I suppose you want to be carried,' and Mr. Lind said, 'Yes,' he thought he would have to be on account of the failure of the crop, and so it went further, and Mr. Lind wanted to know about the discount, and Mr. Jackson told him that it wouldn't be more than right for him to have it at cost, but that it cost some to run the yard, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Other correspondence followed, a summary of which is given in a letter written by Mr. Bovey, the president of the plaintiff corporation, on January 2, 1913, which we reproduce in full later. In the meantime, plaintiff had raised $300 upon a mortgage upon one of his farms, and had assigned portions of his salary to the company, so that, if he were allowed the discount before mentioned, his account would be fully paid in October, 1912. Upon writing to the company to this effect, he received the following letter, January 2, 1913, written as aforesaid by the president of the company: know. On April 29th you stated in a letter that This is a trial de novo in this court, the only dispute being as to whether or not the defendant is entitled to a 25 per cent discount; it being agreed that if such discount is allowed defendant owes nothing to the plaintiff, and that if it is not allowed his indebtedness will be the sum of $140, for which a lien was later filed. [1] 1. We have not set out all of the testimony, but think we have given sufficient extracts to justify the conclusion which we That Mr. Jackson have reached, to wit: made an agreement with the defendant whereby he was to have the discount, and that the agreement was ratified by the company. Appellant states that he relies for a reversal upon two propositions: First, that Jackson did not agree to the 25 per cent, discount; and, second, that, if he did, he was without authority to make such an agreement. To the first question, we have to say, as above, that we think the preponderance of the evidence is in favor of the version given by the defendant, and we are particularly impressed with the probability of the testimony given by Mrs. Lind. "Mr. C. E. Lind, Bovey-Shute Lumber Co., Warwick, N. D.—Dear Sir: I have yours of December 29th, and note all you say about your account. Now, in this connection would call your attention to the following quotations from letters which we have written you repeatedly regarding this account. I have looked up all this correspondence, and want to call your attention to what the general office has told you regarding your account. Under date of January 30, 1912, which would be about 11 months ago, we wrote you as follows: 'We cannot agree to carry this account much longer, but if you will settle within the next thirty days, we will give you a reasonable discount for cash." You replied to this on February 1st, offering a real estate mortgage, if we would carry it until the next fall. To this we replied that it would be out of the question for us to carry this until fall. In this letter we also state that we will give you a proper discount for cash, but must have the cash settlement at once. This letter is dated February 6, 1912. On February 12th to get a discount on his bill, he would have you wrote in that you would be able to pay us to settle pretty soon. [2] 2. As to the second proposition, it is sufficient to say that the letters of the president of the company show either a ratification of the conversation had by Mr. Jackson or else of an understanding from some source that a discount should be allowed. As late as March 5th, some six months after the purchase of the lumber, the president of the company wrote that, if defendant expected Some six weeks later by March 1st, and on February 23d we wrote $300 was paid, and under the assignment of you, reminding you that there was only a week salary arrangement the entire bill was paid left before March 1st, and asking if you were within five months more. In our opinion, going to be able to pay. We also stated that we could not carry the account any longer than March 1st. We again wrote you on March 5th, stating that if you expected to get a discount on your bill you would have to settle pretty soon, and we also said that the time would soon be up during which we could afford to allow any discount on last year's business. On the 6th of April we wrote you, offering to take out a mortgage on your farm and furnish you the money, so that you could settle our account. Nothing was ever done about this, so far as we 151 N.W.-2 this was such a ratification of the conversa- |