Page:North Dakota Reports (vol. 2).pdf/327

 Moer & Harris, for respondents:

The points made in appellant’s brief are all that will be considered by the respondents, as any error of the trial court not pointed out therein, is deemed to be waived. Brewing Co. v. Mielenz, 5 Dak. 136; Martz v. Putnam, 20 N. E. Rep. 270; Express Pub. Co. v. Aldine Press, 17 Amer. Rep. 608. The answer of appellant confesses and seeks to avoid the contract by new matter; no proof of the contract was necessary except as against the defendant, E. C. Bronson, and if the trial court erred as against her it was cured by the verdict of the jury and cannot be urged as a reason for a new trial. Gale v. Shillock, 29 N. W. Rep. 661; Derby v. Gallup, 5 Minn. 119; Gas Co. v. City of Davenport, 15 Iowa 6; Martin v. Sevearengen, 17 Iowa 346; Wollen v. Whitacre, 73 Ind. 198. The contract itself determines the amount appellant agreed to pay and controls in fixing the measure of damages. Davis & Rankin v. Belford, 37 N. W. Rep. 919; Gibbons v. Grinsel, 48 N. W. Rep. 255.

The opinion of the court was delivered by

Corliss, C. J. The theory on which plaintiffs were allowed to recover against the appellant was that they had fully performed on their part all the conditions of an agreement with appellant and others to erect and equip a creamery at La Moure, in this state. We are compelled to reverse the judgment, because it appears that the plaintiffs were not justified in proceeding with the work under the contract for the purpose of charging the appellant with the full antount which he and his co-partner agreed to pay as their share of the contract price, as it is undisputed that the appellant broke the contract the day after it was made, and plaintiffs received notice of his determination not to carry out the agreement on his part on the second day after the contract was entered into. This was before they had taken any steps under it. Appellant could not, under the facts of this case, rescind the agreement without the assent of all parties thereto. Nor is it claimed that he did rescind it. The utmost that can be urged is that he arbitrarily refused to perform his part of the contract. This would subject him to an action for damages for breach of the contract.