Page:North Dakota Reports (vol. 48).pdf/249

 same rules, except as otherwise provided by this Code.” § 5895, C. L. 1913.

“A contract must be so interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting so far as the same is ascertainable and lawful.” § 5896, C. L. 1913.

“A contract must receive such an interpretation as will make it lawful, operative, definite, reasonable and capable of being carried into effect, if it can be done without violating the intention of the parties.” § 5903, C. L. 1913.

“A contract may be explained by reference to the circumstances under which it was made and the matter to which it relates.” § 5907, C. L. 1913.

“Particular clauses of a contract are subordinate to its general intent.” § 5910, C. L. 1913.

From the evidence it appears that the bond in suit was drawn up as the result of a conference had between the parties and their respective attorneys. It was first suggested that the bond provide that the land company pay a reasonable rental value of the land, in event it was defeated, without naming the sum of such rental. Halstead objected to this, and wanted “a stated sum” named. When, during the course of this trial, he was asked by his counsel if there was "any discussion at that time what would be the reasonable value of the use of the premises.” Counsel for the defendants objected, on the ground that this “would tend to vary the terms of a written instrument,” and this objection was sustained. There is not the slightest evidence tending to show that the sum stated, viz. $500, was in excess of the reasonable rental value of the premises. There can be no question but that the owner of a tract of land has the right to contract with another with reference to the occupancy thereof, and to agree upon the rental to be paid for such occupancy. Nor is there any reason why two parties, asserting conflicting claims of ownership to a tract of land, may not contract, either with a third party or with one another, with regard to such occupancy and the rental to be paid, and leave the ownership of the rents contingent upon the adjudication of the right of ownership; that is, they may contract that a certain rental shall be paid to whoever is eventually determined to be the owner. And as we construe the contract, under the evidence before us in this case, that is precisely what the parties here did; that is, upon the record before us, we are of the opinion that the parties did not attempt to provide for a penalty, or for stipulated damages, but that they agreed upon the value