Page:North Dakota Reports (vol. 3).pdf/419

 own boat for any specified period. They were providing for the payment of their claims, and, as defendant must have-some income on which to live, they allowed him to pay $150 per month less out of the boat's earnings on their claims than he would have paid had no such provision been inserted in the agreement. But in the end they were to receive only so much money, and the defendant was, by turning over these earnings, only paying for his interest in the boat. The interveners might at any moment have waived the performance by defendant of the obligation to pay them the boat's earnings, and no one would dream that they would have been bound to keep on paying his monthly salary; or they might have prevented such performance without being liable for his salary in the future. The mere fact that their act preventing performance rendered them liable for the conversion of the boat did not increase their liability under the contract. There is no other possible interest of the defendant under the contract which could be effected by the seizure of the boat. The interveners had fully performed their part of the agreement. As to them the contract was executed. They could not violate an engagement they had already performed. Whatever remained to be done under the agreement was to be done by the defendant. Exonerating him from the performance of those executory conditions would be a benefit, and not a detriment. We are therefore of opinion that the demurrer to the two counterclaims should have been sustained, and the order overruling the demurrer is therefore reversed.

There is another question which was not discusssed, but which may arise on the trial of the issues between the interveners and the defendant. We wish to settle it now to the end that no further appeal need to be taken to settle it in the future. Including this appeal, there have been four appeals in the case. This would seem to be sufficient for one litigation. The question to which we refer is whether there can be an affirmative judgment in favor of defendant Braithwaite in case the evidence should disclose the fact that not only were the interveners not entitled to