Page:North Dakota Reports (vol. 48).pdf/735

 Vendor and purchaser-in equitable foreclosure of contract for deed notice of intention to cancel is not necessary.

6. In an equitable action for the foreclosure of a land contract it was not necessary, as a condition precedent, that a written statutory notice of intention to cancel be served.

Vendor and purchaser-on strict foreclosure of land contract purchaser held entitled to a further extension of time to meet defaults.

7. In a judgment providing for strict foreclosure of a land contract, although the trial court did not err in not granting the statutory period of redemption, nevertheless, upon equitable principles it is held, that the vendee was entitled upon the facts as found, to a further extension of time within which to meet the defaults found, consistent with plaintiff's rights and crop production.

Equitable action in District Court, Ramsey County, Buttz, J., to cancel a land contract.

Judgment amended and further period of redemption allowed.

Flynn, Traynor & Traynor and Adamson & Thompson, for appellant.

"Before the owner of land who has agreed to convey the same by a contract of sale, can cancel the contract for non-compliance therewith he must proceed promptly to declare his election to cancel on discovery of defaults and if he does not proceed promptly to do so, he will be deemed to have waived his right to insist that the vendee has lost his rights in equity on account of failure to comply with his contract." See Timmons v. Russell, 13 N. D. 487; also the following cases following same rule: Kicks v. State Bank of Lisbon, 12 N. D. 576; Smith v. Detroit, etc., (S. D.) 97 N. W. 17; Fergusson v. Talcott, 7 N. D. 183; Bozum v. Johnson, 8 N. D. 306; Pres. v. Lee, (S. D.) 86 N. W. 642.

J. F. T. O'Connor, C. F. Peterson, for respondent.

A variance is immaterial unless actually and prejudicially misleading, and shown to the satisfaction of the court to be so. Compiled Laws 1913, § 7476; Halloran v. Holmes, 13 N. D. 411, 416, 101 N. W. 310; Weber v. Lewis, 19 N. D. 473, 126 N. W. 105.

The function of the complaint is to inform defendant of the nature of plaintiff's demand so that he may not be mislead in the preparation