Page:Dakota Territory Reports.djvu/49

 if this is to be treated as an action at law, then the court below erred in allowing the testimony to betaken by deposition.

We think not. The defendants, by consenting to the blending of the two causes of action, consented that evidence might be received in any of the modes applicable in an action at law or suit in equity. And we might with propriety here remark, that it comes with a bad grace for a party to lay by in the lower court and allow all the advantages he might have availed himself of to pass unchallenged, and then come into this court and complain of that which results from his own carelessness or cleverness in the court below.

We are gratified to know this criticism does not apply to the counsel now engaged in this cause, as they are in no way answerable for the pleadings on trial in the court below. The next question then is, this: Is there evidence to support the finding?

The complaint, or petition, charges that this land was of the value of one thousa,nd dollars or more. That the defendants agreed to give plaintiff cash, four hundred dollars ($400,) lumber, one hundred dollars ($100,) and to erect on their, the defendant's, own land, thus purchased, a steam sawmill, in the following season, the erection of which, in the immediate vicinity of the plaintiffs other lands, would have been to the plaintiff, by enhancing the value of his adjoining lands, at least worth five hundred dollars, and that this last consideration (the building of the mill) formed an important or controlling consideration for the conveyance of the one hundred and sixty acres of land.

Was this land conveyed worth one thousand dollars or more? We think the preponderance of the evidence clearly established that proposition. There is the testimony of the plaintiff, of Benton Fraley, and of Burleigh, all estimating the land at about that sum, and one or more at higher figures. Then there is the testimony of the defendants, stating that the five hundred dollars, the consideration in the deed, was all the lands were worth; but it should be remembered, however, that the two Fraleys give some reasons upon which they base their judgment. They state that four or five hundred