Page:North Dakota Reports (vol. 48).pdf/244

 main opinion states the true measure of damages. It is certain, however, that at leagt the damages specified therein have been sustained. More than that amount may have been sustained if a different rule as to the measure of damages were applicable.

We do not, however, feel disposed to enter into a discussion at length, of another and different rule of damages than that above stated.

J. D. HALSTEAD, Appellant, v. MISSOURI SLOPE LAND & INVESTMENT COMPANY, a corporation, and A. L. MARTIN, and MARY J. McGILLIVRAY, Respondents.

(184 N. W. 284.)

Damages—contract construed as agreement for rental, contingent on determination of ownership, and not one for penalty.

In this action two parties, H. and M., were asserting conflicting claims of ownership to a certain tract of land. During the pendency of litigation involving such claims, H., the one in possession, surrendered possession to M. pursuant to a written agreement, signed by M. and two sureties, wherein it was agreed that “in case the court shall decree the return of said land” to H., “they will return the same to him together with $500 per year as damages for the use and occupancy of the said premises.” For reasons stated in the opinion it is held that, under the evidence in this case, the agreement between the parties was one for the payment of a rental, fixed by them, contingent upon the determination of the ownership of the premises; and not one for the payment of a penalty, or one whereby “the amount of damages to be paid or other compensation to be made for a breach of an obligation, is determined in anticipation thereof.”

Opinion filed June 27, 1921. Rehearing denied September 10, 1921.

From a judgment of the District Court, Golden Valley County. Hanley, J. Plaintiff appeals.

Reversed.