The terms of sale agreed upon and assented to by the defendant were different in some respects from those stated in the listing contract. For this reason it is contended that the plaintiffs are not entitled to the compensation provided for in the agency contract, but that they must show that the defendant expressly agreed to allow the same compensation for the sale upon the modified terms as was fixed by the agency contract, and this was not done. There is no merit in this contention. Where an agent who is employed to effect a sale of another's land upon certain terms, obtains a purchaser who is ready, willing, and able to purchase it upon different terms, and the modified terms are assented to by the owner, the agent, in the absence of a new agreement, is entitled to the compensation fixed by his original contract. Huntemer v. Arent (S. D.) 93 N. W. 653; Knowles v. Harvey, 10 Colo. App. 9, 52 Pac. 46; Magill v. Stoddard (Wis.) 35 N. W. 346; Potvin v. Curran, 13 Neb. 302, 14 N. W. 400; Welch v. Young (Iowa) 79 N. W. 59; Goss v. Stevens (Minn.) 21 N. W. 549.

Neither did the trial court commit prejudicial error in excluding the testimony of the defendant to the effect that he had frequently demanded of the plaintiffs the $100 which was paid to them by the purchasers when the contract was executed, and that he had not received any sum from the plaintiffs, or any person, on account of the sale. The defendant did not deny, or offer to deny, that the contract which his agents made with the purchasers was corrected to conform to his wishes, was read to and understood by him, and was executed in his presence. Under the express terms of this contract the $100 payment went to the agents. He was entitled to further payments only when he would consummate the sale according to the terms of the contract. This he arbitrarily refused to do. Evidence that he repeatedly demanded money to which he was not entitled under the terms of the sale and his alleged demands assume that there was a sale-was, from defendant's standpoint, clearly immaterial upon any issue of fact involved in the case.

Finding no error in the record, the judgment will be affirmed. All concur.

WEST. NORTHERN PAC. RY. CO. (Supreme Court of North Dakota. June 14, 1904.)

RAILROAD CROSSING-ACCIDENT-CONTRIBUTORY NEGLIGENCE.

1. Failure to give the statutory signals, and running the train at too rapid a rate of speed, does not excuse negligence on the part of one in charge of a team killed at a railroad crossing.

2. Plaintiff's servant approached a railroad crossing with which he was familiar, with his horses on a trot, knowing that a train was approaching at a high rate of speed and very near to the crossing, and that a view of the train

was obstructed by buildings and cars from a point 127 feet back from the track until he arrived within 8 feet thereof. But for the noise of his wagon, he could have heard the train in time to have avoided a collision with it. Under these circumstances he was guilty of negligence, preventing a recovery, first, for attempting to drive in front of a rapidly moving train in close proximity to the crossing, whereby his team was struck and killed by the cars; and, second, for not stopping and thus quieting the noise of his own vehicle, and thereby enabling himself to hear the train before getting upon the track in front of it. (Syllabus by the Court.)

Appeal from District Court, Eddy County; Glaspell, J.

Action by P. H. West against the Northern Pacific Railway Company. Judgment for plaintiff. Defendant brings error. Reversed.

C. J. Maddux, M. Conklin, and Ball, Watson & Maclay, for appellant. P. M. Mattson and S. E. Ellsworth, for respondent.

COCHRANE, J. Defendant appeals from an order denying its motion for judgment notwithstanding the verdict, or for a new trial. The plaintiff recovered the value of a team killed at a railroad crossing. The point for consideration is whether or not, under the evidence, plaintiff's driver was guilty of negligence proximately causing the injury, or of contributory negligence as a matter of law.

The accident occurred on Lamborn avenue, in New Rockford, where the appellant's main track crosses such street at right angles. Lamborn avenue runs east and west, the railroad north and south. There is a side track on the west side of, parallel with, and distant eight feet from the main line track. On the west side of this side track, and north of Lamborn avenue, are certain elevators and structures extending for several hundred feet along the side track. The east line of such structures is 8 feet from the center of the side track, and 30 feet 8 inches from the center of the main track. These structures varied in height, and, with cars on the side track near the elevators, obstructed the view of the track to the north, on the part of one approaching from the west on Lamborn avenue, until within eight feet of the track. Chicago avenue runs north and south, west of and parallel with the railroad. It is 127 feet from the west side of Chicago avenue to the center of the main-line track, and 1,380 from Lamborn avenue north to the water tank. From the west side of Chicago avenue a train could be seen if north of the water tank.

Frank Haas, the driver of this team, lived in New Rockford, and had been employed as a driver upon a dray for several months prior to the accident. He was familiar with the crossing on Lamborn avenue and the conditions above described. On the evening of the accident, October 8, 1902, between 6 and 6:30 o'clock p. m., but before dark, Haas was in front of plaintiff's house, one block west

of the railroad tracks on Lamborn avenue. He saw a train approaching on the main track, about 11⁄2 miles north. He went into the house, stopped there not over a minute, came out to the street, where his team was standing, turned it around, and started east toward the track. He drove the team on a trot clear down and onto the track. When he crossed the west side of Chicago avenue be looked north, but did not see the train. If it had been north of the water tank he could have seen it. He knew when he could not see it that it was very close to the crossing; knew it had not passed the crossing; knew it was approaching; but thought, from where he had first seen the train, he had time to get over the crossing, and so did not slacken the horses' speed at all until they struck the track. As he was driving, he looked and listened for the train. The wagon he was driving was an ordinary lumber wagon. It made some noise. Haas testified: "I could have heard the train if I had not been making an unusual noise myself." He saw the train when 50 or 60 feet from him, and when his horses were on the track he tried to back them off, but the team was struck by the engine and killed.

The negligence of defendant is alleged to have consisted in its running the train into the town and across this street at a high rate of speed, without sounding the whistle or ringing the bell. There is a conflict in the evidence both as to the speed of the train in approaching the crossing and as to the warnings given. There was evidence in the case that the train approached the crossing at a speed of 30 miles an hour, and that the whistle was not sounded or bell rung within 80 rods of the crossing. For the purposes of this decision, the evidence will be considered in its most favorable aspect toward plaintiff. Haas testified that if the trainmen had rung the bell or blown the whistle within 80 rods of the crossing, or if the bell had been rung continuously within a block of the crossing, or if the train had been going at the rate of speed that trains usually run through the town, he could have avoided the accident; that he was depending upon the sound of the whistle or the bell to warn him of its approach. It is plain that Haas was guilty of gross negligence, and that his negligence was the direct cause of the accident, and that the negligence of the appellant's trainmen in the particulars mentioned could furnish no excuse or justification for the reckless act of Haas in attempting to cross in front of the approaching train. From the time Haas crossed Chicago avenue until he reached the track he knew all view of the train would be obstructed, and that he could not gauge its exact distance through the sense of sight, but must rely upon the sense of hearing alone. When 127 feet from the crossing, with his mind and attention fixed upon the fact that the train was approaching; with ocular proof that it had traveled from

a point 11⁄2 miles north to a point less than 1,380 feet from the crossing since he had first seen it, less than 3 minutes before, and if the rate of speed was maintained it would be on the street ahead of him in less than 1 minute; with knowledge that he could not see the train again until it emerged from behind the buildings and appeared at the crossing toward which both the train and his team were hurrying; that a stop of a minute at most would let it pass; with full knowledge of the danger of attempting to drive across in front of a train approaching at such a rapid speed, and dangerously near-he took no precautions for his safety, but hastened on as if in a race to see which could first pass the point of intersection.

The trains were not accustomed to stop at the crossing. He knew this, because he relied upon the bell or whistle to warn him when the train would get to the crossing. The erections which obstructed his view of the train also prevented the train crew seeing him. It was impossible, and he knew it would be impossible, for the train crew to see him on the crossing in time to stop the train and avoid a collision. As between himself and the train, the train was entitled to precedence and the right of way, because, from the very nature of the business, the character and momentum of a railroad train, and the requirements of public traffic by means thereof, it cannot be expected that it shall stop and give precedence to an approaching wagon to make the crossing first. It is the duty of the wagon to wait for the train. Continental Improvement Co. V. Stead, 95 U. S. 161, 24 L. Ed. 405; Gahagan v. Ry. Co. (N. H.) 50 Atl. 146, 55 L. R. A. 434. Haas voluntarily and unnecessarily put himself and team in a place of known danger on the track in front of the train, and by so doing took the risk of accident. The consequent injury was directly attributable to his want of ordinary care, and not to the negligence of the railway company. The object of requiring the whistle to sound or the bell to ring 80 rods before reaching a crossing, and thereafter until the crossing is passed (section 2976, Rev. Codes 1899), is to notify the traveler so that he can look out for his safety, and allow the train to pass the crossing before he exposes himself to danger by a possible collision. Warner v. Ry. Co., 44 N. Y. 470.

When, as in the case at bar, the person in charge of a team had actual knowledge of the train's approach in ample time to have permitted the train to pass, and knew, without sound of bell or whistle, all that he could have known had the alarm been sounded, it cannot be said that the failure to ring the bell or sound the whistle was the cause of the accident. Burnett v. Ry. Co. (N. J. Sup.) 39 Atl. 663; Chicago, etc., Ry. Co. v. Bell, 70 Ill. 102; Pakalinsky v. Ry. Co., 82 N. Y. 424; Chicago, etc., Ry. Co. v. Houston, 95 U. S. 702, 24 L. Ed. 542; Blake v. Receiver,

30 N. J. Eq. 243; Helm v. Ry. Co. (Ky.) 33 S. W. 396; Bertelson v. Ry. Co., 5 Dak. 313, 40 N. W. 531; State v. Ry. Co., 76 Me. 357, 49 Am. Rep. 622; McDonald v. Ry. Co. (Tex. Sup.) 22 S. W. 942, 40 Am. St. Rep. 803; McManamee v. Ry. Co. (Mo.) 37 S. W. 119; Fletcher v. Ry. Co., 64 Mo. 484. In Burnett v. Ry. Co. (N. J. Sup.) 39 Atl. 663, it is said: "Irrespective of the question of negligence in attempting to cross a railroad track in front of a train known to be near at hand, the very moment that it appears that the person injured had knowledge that the train was approaching the crossing, the nonliability of the railroad company for the injury is established. The only ground upon which it can be held responsible is that it failed in the discharge of the duty which it owed to the person injured, namely, the giving him timely warning of the approach of its train, and that, by its failure, it caused the accident which produced the injury. But if the injured person discovers for himself what the railroad company should have informed him of that its train was approaching the crossing-it is quite clear that the negligence of the company in failing to warn him had no part in the bringing about of the accident." In Chicago, etc., Ry. Co. v. Houston, 95 U. S. 702, 24 L. Ed. 543, it is said: "The failure of the engineer to sound the whistle or ring the bell, if such were the fact, did not relieve the deceased from the necessity of taking ordinary precautions for her safety. Negligence of the company's employés in these particulars was no excuse for negligence on her part. She was bound to listen and to look, before attempting to cross the railroad track, in order to avoid an approaching train, and not to walk carelessly into the place of possible danger. Had she used her senses, she could not have failed both to hear and to see the train which was coming. If she omitted to use them, and walked thoughtlessly upon the track, she was guilty of culpable negligence, and so far contributed to her injuries as to deprive her of any right to complain of others. If, using them, she saw the train coming and yet undertook to cross the track, instead of waiting for the train to pass, and was injured, the consequences of her mistake and temerity cannot be cast upon the company. No railroad company can be held liable for a failure of experiments of that kind. If one chooses, in such a position, to take risks, he must bear the possible consequences of failure."

It is urged that respondent had a right to depend upon the trainmen performing their statutory duty, and that, if the bell had rung or whistle sounded continuously as the train approached the crossing, he could have measured its exact location by the sound, and so stopped before getting onto the track; that it was properly a question for the jury whether he was in the exercise of ordinary care under the circumstances. He had actual knowledge, when he crossed Chicago ave

nue, that the train was within less than 80 rods of the crossing, and that it had not sounded the whistle or bell, and, as he covered the intervening 127 feet, he had every reason to believe the train was moving at 10 times the speed of his team and every second drawing nearer the point of danger, that it was not sounding the bell or whistle, and that he could not, therefore, rely upon these warnings. The ordinary precaution required of one approaching a railroad crossing, when he has no knowledge of the close proximity of the train, is that he look and listen and make a diligent use of all his faculties to inform himself and avoid a collision. Where a view of the track in either direction is obstructed before reaching the point of danger, extra precaution is requir ed to ascertain danger through the sense of hearing. When the exercise of these ordinary precautions would have avoided the accident, negligence is conclusively established. Haas' rapid driving and the noise of his wagon prevented his hearing the rumbling of the train-the only means he had of measuring its exact distance. Had he stopped and listened, he would have heard the train. It was his duty to stop and listen, under the circumstances, before venturing onto the track. His failure to do so was negligence as a matter of law. Haines v. Ry. Co., 41 Iowa, 228; Ry. Co. v. Hunter, 33 Ind. 364, 5 Am. Rep. 201; Ernst v. Ry. Co., 39 N. Y. 58, 100 Am. Dec. 405; Baxter v. Ry. Co., 41 N. Y. 502; Salter v. Ry. Co., 75 N. Y. 273; Lake Shore, etc., Ry. Co. v. Miller, 25 Mich. 274; Pyle v. Clark, 79 Fed. 745, 25 C. C. A. 190; Pakalinsky v. Ry. Co., 82 N. Y. 424.

If the failure of the engineer to continuously ring the bell was negligence as to Haas, and in any way contributed to the accident, the case falls within the rule: "Where both parties are guilty of negligence, and the injury is due to the negligence of both, no recovery can be had." Nashua Iron & Steel Co. v. Ry. Co., 62 N. H. 159; Gahagan v. Ry. Co. (N. H.) 50 Atl. 146, 55 L. R. A. 434; Holland v. Ry. Co. (C. C.) 18 Fed. 243; Fletcher v. Ry. Co., 64 Mo. 484; Gorton v. Ry. Co., 45 N. Y. 662; Lake Shore, etc., Ry. Co. v. Miller, 25 Mich. 274. In Haas v. Ry. Co., 47 Mich. 407, 11 N. W. 219, it was said: "To move forward briskly, as the decedent did, from a point whence an approaching train would not be seen, at a time when it was known by him that a train was due, and not to pause until the train was encountered, was so far from being ordinary prudence that it approached more nearly to absolute recklessness." In Schaefert v. Ry. Co., 62 Iowa, 624, 17 N. W. 893, similar to this case upon the facts, the team was trotted onto the track where the accident occurred. It was there said: "Under the circumstances stated, ordinary care required that the deceased should have stopped and listened at some place before reaching the track. There was nothing to prevent his doing so, and nothing to dis

tract his attention." In Chicago, etc., Ry. Co. v. Crisman, 19 Colo. 30, 34 Pac. 286, it is said: "Where one approaching a railroad crossing neglects to avail himself of every opportunity to look and listen, and carelessly ventures upon the track and is injured, such conduct is of itself sufficient to defeat a recovery." In Merkle v. Ry. Co., 49 N. J. Law, 473, 9 Atl. 680, a person drove a wagon loaded with boxes and empty bottles across a railroad track at a point where it was impossible to perceive an approaching train till within six or eight feet of the track. The noise of the bottles prevented his hearing the noise of the train. The court said: "Inasmuch as he could not see an approaching train at any considerable distance from the track, ordinary prudence required him to stop when he was near enough to the railroad to ascertain, at least by listening, whether there was any danger or not." To the same effect is Keyley v. Ry. Co. (N. J. Err. & App.) 45 Atl. 811. Judge Thompson, in his work on Negligence, vol. 2, § 1670, says: "As to the duty of one approaching a crossing, if his view alone is obstructed, the exercise of ordinary prudence will plainly require him to stop so that the noise of his vehicle will not prevent him from hearing any train that may be approaching." In the aspect of the evidence most favorable to plaintiff, he should have been nonsuited.

The

Defendant moved the court for judgment notwithstanding the verdict, or for a new trial. The particular ground upon which it demanded a new trial was the insufficiency of the evidence to sustain the verdict. motion for judgment notwithstanding the verdict was properly overruled. At the close of the testimony defendant's counsel did not move for a directed verdict. Ward v. McQueen (just decided) 100 N. W. 253. Such motion is a necessary preliminary to a motion for judgment notwithstanding the ver dict. Chapter 63, p. 74, Laws 1901; Johns v. Ruff, 12 N. D., 95 N. W. 440. But the motion for a new trial was improperly overruled. The verdict is contrary to and is not supported by the evidence.

The order appealed from, in so far as it denied defendant's motion for a new trial, is reversed, and a new trial ordered. All con

alleging exceptional circumstances to show that the remedy at law would be inadequate, does not present a case for equitable interference; and in such case it is error to issue a temporary restraining order.

(Syllabus by the Court.)

Appeal from District Court, Cass County; Charles A. Pollock, Judge.

Action by L. H. Burton and wife against A. A. Walker, justice of the peace, and M. L. Shanks. From an order granting an injunction, defendants appeal. Reversed.

J. F. Callahan and Morrill & Engerud, for appellants. Smith Stimmel, for respondents.

YOUNG, C. J. The defendants have appealed from an order of the district court overruling their motion to set aside a temporary injunction which was issued and served with the summons and complaint in this action. The order in question enjoined the defendants from advertising and selling two trunks and their contents, which are owned by the plaintiffs, and were seized and are now held by the deputy sheriff under a writ of attachment issued from the justice court of the defendant A. A. Walker in an action wherein the defendant Shanks was plaintiff and these plaintiffs were defendants. The action in justice court was brought to recover a balance of $82, alleged to be due for medical treatment. The summons in the above case was served on Mrs. Burton, but not upon L. H. Burton, her husband. On the return day, August 15, 1903, the deputy sheriff filed his return showing that service could not be made upon L. H. Burton, whereupon the plaintiff requested the justice to issue a second summons under the provisions of section 6643, Rev. Codes. The defendants (plaintiffs in this action), who were present in person and by counsel, moved to dissolve the attachment, and later offered to waive any alleged defect in the service. Their motion was denied, and the plaintiff's motion for a second summons was granted, and the case was continued to September 12, 1903, the return day named in the second summons. Prior to the return day, and on August 26, 1903, the defendants in that action instituted the present action in the district court. The complaint, in addition to alleging the facts already enumerated, alleges that the defendant Shanks filed a request with the justice of the peace asking that the trunks and their contents be sold, and the proceeds applied to the satisfaction of his claim; and that "in the meantime the defendants herein threaten to sell plaintiffs' trunks and wearing apparel, * and that plaintiffs have reason to believe and do believe that, if not restrained, said justice of the peace will order said trunks and their contents sold; and plaintiffs are liable to suffer irreparable injury and damage, and have not a good, sufficient, and adequate remedy at law in the premises." The relief prayed for is that defendants be restrained from selling said trunks, or offering them for sale, and for costs.

The order appealed from must be reversed. The complaint does not state facts sufficient to constitute a cause of action for equitable relief. A temporary restraining order may be issued upon the plaintiff's application to protect his interests in the litigation pending the determination of the action, when one of the several conditions enumerated in section 5344, Rev. Codes 1899 exist; but it may issue only "when it shall appear by the complaint that the plaintiff is entitled to the relief demanded." This case is controlled, both as to the sufficiency of the complaint and the right to the temporary restraining order, by Forman v. Healey, 11 N. D. 563, 93 N. W. 866. See, also, McClure v. Hunnewell, 12 N. D. 99 N. W. 48. In the case first cited we said that: "The provisional remedy by injunction in this state is of statutory origin, and is granted a plaintiff when necessary to protect his rights pending final determination of the case upon the merits; and this only when the complaint contains averments which, if proven, would entitle plaintiff to the relief demanded, and its issuance is made to appear as necessary to protect plaintiff's rights during the litigation;" citing numerous

cases.

The complaint in this case, as in the case just referred to, contains no averments which would authorize equitable relief. The most that can be said is that the defendants threaten to convert their property. It is elementary that equity will not interfere to prevent a conversion of personal property save under exceptional circumstances, the remedy at law being usually adequate. No circumstances are alleged in the complaint to take the case from the general rule.

The district court is directed to vacate the order appealed from, and also the order granting the temporary injunction. All con

1. Under section 4343, subd. 2, Rev. Codes 1899, one who, without authority, executes a written contract in the name of his principal, without believing in good faith that he has authority to do so, is responsible as principal to third persons for his acts in the course of his assumed agency; and an action is maintainable against him upon the contract, as principal therein, and for its breach.

2. Under section 4995, Rev. Codes 1899, one injured by the breach of an agent's warranty of authority may recover damages therefor in "the amount which could have been recovered and collected from his principal if the warranty had been complied with," and, in addition thereto, "the reasonable expenses of legal proceedings taken in good faith to enforce the act of the agent against his principal."

3. In 1891 the defendant, as agent for the owner of certain real estate, and in her name, but without authority, and without believing in good faith that he had such authority, executed and delivered to the plaintiff a written con

tract to sell and convey the same upon the croppayment plan. The plaintiff entered into possession, completed his payments, and became entitled to a deed in the fall of 1901. In March, 1902, the plaintiff was ejected in an action instituted by the owner. Upon these facts it is held (1) that the defendant is liable as principal upon the contract, and for its breach; (2) that plaintiff's cause of action arose when he was ejected by the owner, and is not barred by the statute of limitations; and (3) that a judgment for the value of the land at the date of the breach, and for his costs and expenses in defending the action of ejectment, was proper.

(Syllabus by the Court.)

Appeal from District Court, Grand Forks County; C. J. Fisk, Judge.

Action by John D. Kennedy against Anthony Stonehouse. Judgment for plaintiff, and defendant appeals. Affirmed.

Tracy R. Bangs, for appellant. Standish & Barry, for respondent.

YOUNG, C. J. The plaintiff sues to recover damages for the breach of a written contract to sell and convey 160 acres of land situated in Grand Forks county. The contract in question was executed by the defendant as agent of the owner, and in her name, but wholly without her authority. The trial was to the court without a jury. Plaintiff was awarded damages in the sum of $3,142.29. The defendant has appealed from the judgment, and demands a review of the entire case in this court.

The defendant admits that he had no authority from the owner to execute the contract in question, and "that at some time he was liable to the plaintiff for this assumption of authority," but claims that whatever cause of action arose in plaintiff's favor for the injury sustained by reason of his assumption of authority is barred by the statute of limitations. The applicability, as well as the sufficiency, of this defense depends entirely upon the character of the defendant's liability and the nature of the plaintiff's cause of action. The questions of fact which are in issue are fully covered by the findings of fact, and the latter are, in our opinion, amply sustained by the evidence. So far as material to a consideration of the questions of law involved, they may be stated as follows: On April 20, 1891, and until the 4th day of Murch, 1902, one Eugenia A. Tinker, a resident of the state of Connecticut, was the owner of the land in question. On the first-named date, to wit, April 20, 1891, the defendant, Anthony Stonehouse, a resident of Larimore, in the county of Grand Forks, executed and delivered to the plaintiff a written contract for the sale of said land, in which Eugenia A. Tinker was named as party of the first part, whereby, in consideration of the plaintiff's agreement to deliver to her or her agent 1,900 bushels of wheat at one of the elevators at Niagara, in said county, she agreed to sell and convey said land by a deed of warranty to this plaintiff. By