Page:North Dakota Reports (vol. 48).pdf/124

 period this conversation was had between the parties regarding the straw. There was nothing further for the plaintiff to do under the contract after the threshing, and therefore he had no further right on the place, except it was his business to haul the share of the grain coming to the defendant. Unless the defendant made a gift of the straw to the plaintiff, the plaintiff cannot recover in this case. There was no consideration for the straw, and so the plaintiff’s title, if any, must rest upon a gift.

“In this case, there was no motion for dismissal or directed verdict, and so the case was submitted to the jury. The court charged the jury that if the defendant gave the plaintiff all of the straw, to be the straw of the plaintiff, and burned it before the plaintiff had the right to remove it, that the plaintiff could recover. This may not have been quite clear to the jury. The court told the jury the straw was a mere gift. The question is now raised that it was not even a gift; that it was a mere license to go upon the land and take such straw as he wanted. In the charge, the court stated that if it was a mere license, this license could be revoked any time and the defendant would not be liable. * * * Under our statute, §§ 5538 and 5539, a gift is a transfer of personal property, made voluntarily and without consideration, but is not valid, when it is a verbal gift, unless the means of obtaining possession are given, and if the property be capable of delivery unless there is an actual or symbolical delivery. This, if a gift, was a verbal gift. The court is inclined to think this is correct. The plaintiff did not go and take any of the straw, did not exercise any more power or dominion over it than he had before the alleged gift. There was no symbolic delivery or possession given; the property remained just as it did before. Then there is another point which the defendant urges, and that is, there never was a complete transfer of title intended. Both the plaintiff and the defendant admit that if there was any straw remaining on the premises after a certain date, the defendant was going to burn it. They differ as to the date set, but they agree on the fact. The plaintiff himself admits the defendant said he could have it if he got it off by a certain time. The more the court views it, the more we are inclined to believe it was a mere license to go and take the straw, and as the plaintiff had not taken it, or any portion of it, or exercised any dominion over it, the defendant could do as he saw fit.
 * * * The defendant claims * * * there was no delivery of the property.

“The defendant claims the jury were influenced by passion or preju-