Page:North Dakota Reports (vol. 48).pdf/619

 expect pay me that $2,300?’ ‘Well,’ he says, ‘I have brother-in-law here, fiadey.’ ‘Well,’ I say, ‘You better go and talk to your brother-in-law.’ He went out and talked to his brother-in-law, and soon then make a bargain with his brother-in-law, and I know his brother-in-law is a man you can depend on, and I make a contract and give each one-half interest and take the land from Ghusm.” The defendant Hodge claims that thereupon, on December 27, 1912, pursuant to the arrangement then made, contracts were executed whereby he (Hodge) agreed to convey respectively to the plaintiff and to Hadey an undivided one-half interest in and to said premises on payment by each of them of the sum of $1,150 ($2,300 in all) on or before January 1, 1918, with interest at 8 per cent. per annum. And upon the trial of the action Hodge produced contracts properly acknowledged before a notary public, evidencing the arrangement testified to by him. ‘The plaintiff, however, claims that he never signed the contracts, and that his signature thereto (written in Assyrian) is a forgery.

The plaintiff also testified that in the fall of 1914 the defendant Hodge approached him and suggested that the land ought to be put under cultivation in order to enable the plaintiff to realize some profit therefrom, so that he might be able to pay him (Hodge) what he had coming; that the defendant Hodge proposed that he (Hodge) would advance the necessary money to pay for removing stone, breaking the land, and seeding it to flax; that Hodge would pay all expenses incidental to such cropping, and that the crop should be utilized first in paying the expenses thus incurred, and that the balance, if any, should be applied upon the indebtedness due to the defendant Hodge. The plaintiff further testified that on or about the time this arrangement was made the defendant, Hodge, forcibly took away from him the contract for a deed which he gave to him in December, 1912; and that hence plaintiff could not produce this contract upon the trial. The defendant Hodge, on the other hand, testified that prior to 1915 both the plaintiff and Hadey surrendered their contracts, and in effect stated to him that they had no desire or intention to carry out the provisions thereof or make payment thereunder, and that thereafter he, supposing that he was the owner of the premises, proceeded to put the land under cultivation and did put in and raise a crop thereon in 1915, and has rented it during subsequent years.

There is no dispute but that the defendant Hodge cropped the land