Page:North Dakota Reports (vol. 48).pdf/450

 labor, and material for the construction of a certain schoolhouse for defendant. The defendant paid about $7,000 of the contract price.

The defendant admits that plaintiff erected and constructed such building, but denies that it was constructed and finished according to the plans and specifications, and by appropriate pleading sets up two separate counterclaims aggregating $9,000. The issues were submitted to a jury and resulted in a verdict in favor of defendant for a dismissal of the action. Plaintiff made a motion for a new trial which was denied, and from the order denying new trial plaintiff appeals and assigns 7 errors based upon alleged erroneous instructions by the court and 28 specifications of the insufficiency of the evidence to sustain the verdict.

The material facts necessary to be stated are as follows: The defendants published notices for bids for the construction of a schoolhouse, according to plans and specifications, to be erected in Minto township in Cavalier county. On about April 1, 1918, at a meeting of the school board, it let the contract for the construction of the building to the plaintiff. At that time the terms of the contract were discussed between the parties and a written contract, Exhibit C, was entered into and signed by both parties. It is of too great length to be set out in full and it is needless to do so.

Exhibits D and E, specifications and plans, are part of the contract. There is another alleged contract, Exhibit A, which plaintiff contends is the contract under which the work was performed. It claims that though this contract is unilateral, having been signed by the plaintiff only, nevertheless it was sent to the defendant and retained by it. Plaintiff claims that the defendant agreed that the work should be done under the latter contract. There positive testimony, however, that Exhibit C was the contract agreed upon and signed by both parties. After its completion. Kasbo took it with him for the purpose of making copies of it and was to return it. At the trial plaintiff attempted to introduce Exhibit A in evidence. It was excluded, and properly so, as it never was accepted nor approved by the school board. It was a contract materially different from Exhibit C. Furthermore, the following stipulation was made in open court between the plaintiff and defendant which was dictated by Mr. Devaney, one of plaintiff's attorneys:

"It is stipulated by and between the plaintiff and defendant that Exhibit C is the original contract entered into by and between plaintiff and defendant on or about April 1, 1918, excepting therefrom the por-