Page:North Dakota Reports (vol. 48).pdf/787

 The interruption of a few days, or a month, is of no consequence. The evidence does well sustain the express contract, as well as an implied contract. The defendant had no right to compel the plaintiff to elect between such contracts. But he cannot complain of a decision which was made on his own motion, and it was altogether in his favor. In actions of this kind the plaintiff may be entitled to recover on an express contract, and also on an implied’contract, or on either one, as proven by the evidence. In such a case it would be a strange and bungling practice for a party to sue on an express contract, and then, in case of defeat, to bring a second action on an implied contract, to be met with the objection that the first action was a bar to the second. The defendant has had a iair trial, and the verdict is well sustained by the evidence.

Affirmed.

, C. J. (specially concurring). This is a second appeal from a verdict and judgment in plaintiff's favor for the sum of $612. The first case is reported in 181 N. W. 951. There all the members of the court, except myself, agreed to a reversal of the judgment appealed from. I dissented and contended that the judgment should be affirmed. The’ case was remanded and retried, and a second verdict in the same amount returned in plaintiff's favor, and judgment entered accordingly. An appeal from the second judgment was taken to this court; all the members of the court, who in the former case declined to affirm the judgment in that case for the reasons stated in their opinion, are now agreed that the second judgment should be affirmed. I agree that it should be affirmed, for the same reasons stated in my dissenting opinion in the former appeal, and for further reasons which inhere in this appeal, not necessary here to discuss or further mention.

, J. I concur in an affirmance of the judgment for the reasons stated in the syllabus. I express no opinion on the procedural questions discussed by Mr. Justice Robinson. Neither do I express any opinion as to whether in event an express contract had not been proven, the facts and circumstances would have warranted the jury in finding that there was an implied contract to pay for board and lodging. Those questions are not here. The complaint alleged, and the jury found, that