Page:North Dakota Reports (vol. 48).pdf/447

 KASBO CONSTRUCTION COMPANY, a corporation, Appellant, v. MINTO SCHOOL DISTRICT OF CAVALIER COUNTY, North Dakota, a corporation, Respondent.

Schools and school districts-in action against district for balance for building, evidence held to show defective performance.

1. Plaintiff's action is to recover the balance claimed to be due under the terms of a written contract, and for extras alleged to have been furnished for the construction of a building to wit: a school house. The defendant interposed a defense to 'the effect that the building was not constructed in accordance with the terms of the contract, plans nor specifications; that the workmanship was poor, etc. The evidence abundantly established that the building was not so constructed, and that it was very defective. The jury returned a verdict in defendant's favor for a dismissal of the action, and judgment was entered accordingly.

Denial of motion for new trial held not error.

2. Thereafter, plaintiff made a motion for a new trial which was denied and an order to that effect entered, and in this it is held there was no error.

Appeal from an order denying a motion for a new trial, Burr, J.

Order affirmed.

G. Grimson, for respondent.

"Where an instrument has been executed by only a portion of the parties between whom it purports to be made, it is not binding on those who have executed. * * * The reason for holding the instrument void is that it was intended that all parties should execute it and that each executes it on the implied condition that it shall be executed by the others and therefore that until executed by all it is inchoate and incomplete and never takes effect as a valid contract and this is especially true where the agreement expressly provides or it is manifestly intended that it is not to be binding until signed." 13 C. J. 305; Wilcox v. Saunders, 4 Neb. 569; and cases cited in notes 85, 13 C. J. 306.