Page:North Dakota Reports (vol. 1).pdf/169

 in the east, and had some capital, was to furnish money to purchase real estate in the west for speculation; the defendant agreeing to make the purchases, and do all things necessary in the business, without compensation for his time and expenses—the two dividing the profits of the venture between them. This general statement of the compact between the parties is sufficient to present the first question to be considered on this appeal. In the court below, the plaintiff recovered judgment against defendant for over $9,000, and a part of this recovery is based on a written agreement between the parties growing out of the following facts: In the course of their dealings defendant purchased an eighty-acre tract of land near the, and took the deed thereof in the names of himself and the plaintiff. All the money that was paid on this purchase was furnished by the plaintiff, being $7,100; and the balance of the purchase money, $2,500, was secured by their joint note and mortgage. Subsequently, and in October, 1882, the defendant executed to plaintiff a warranty deed for his half interest, in the legal title to this property, and as part of the same transaction the plaintiff signed and delivered to defendant an agreement which is, in substance, as follows: “Agreement made and entered into this 7th day of October, 1882, by and between Thomas J. Devore, * * * party of the first part, and Thomas S. Woodruff, * * * party of the second part. Whereas, the party of the second part has purchased for himself and party of the first part [certain lands described, ] paying therefore $7,100 of moneys of party of the first part therefor, executing a mortgage for balance of purchase money in the sum of $2,500, with interest from June 7th, 1882, making the total amount of said purchase $9,600, now this agreement witnesseth that the party of the second part, for the purpose of securing the party of the first part for the moneys paid by him upon this purchase, has this day deeded his interest in said eighty acres of land to said party of the first part for the nominal sum of one dollar, the party of the first part agreeing to assume the payment of the mortgage and note jointly executed by party of the first part and party of the second part, made payable to C. D. Boughton, of Fargo, for the sum of twenty-five hundred dollars, and