Wee, to the plaintiff, Mas Christofferson. The complaint is in the usual form, and was served on the 19th of November, 1909. The defendant. answered December 13, 1909, and on the 3d of February, 1910, served an amended answer bearing date January 29, 1910. Service of the amended answer was made by leave of court. Service was admitted and the answer retained by the attorney for plaintiff without objection. This answer pleaded certain defensive matters which it is unnecessary to set forth. It was also attempted to plead two counterclaims. As these counterclaims are the subject of the disagreement of counsel they are quoted in full:

"That on or about the 6th day of April, 1907, at Lisbon, North Dakota, the plaintiff and defendant entered into an agreement for the purchase by the defendant of certain real estate situated within the north one half of northeast quarter (N of NE) of section sixteen (16), in township one hundred and thirty-five (135) range fifty-seven (57) in consideration of the sum of two hundred dollars ($200); that in pursuance of said agreement the plaintiff executed and delivered to the defendant a conveyance describing said real estate by certain metes and bounds as hereinbefore mentioned, and that defendant executed and delivered to plaintiff the promissory notes sued upon in this action; that it was then and there understood by the parties that the said land had been surveyed, that a plat thereof had been made and filed for record, and that it was also understood and believed by the parties as a part of said agreement and as one of the facts which induced the defendant to enter into the same, that the conveyance which plaintiff executed and delivered to him sufficiently described the premises purchased, and to entitle it to be recorded, and that it would be accepted by the register of deeds of said Ransom county for record, and recorded by him without any further act on the part of the defendant, or without further expense to him, and without the necessity of any survey or plat of said premises so conveyed.

"That in fact no survey of said premises had been made, no plat thereof was of record, and the description of said premises in said deed was not sufficient to designate the premises conveyed, or to entitle said deed to be recorded, and to require the register of deeds to record the

same.

"That defendant did thereupon present said deed to said register of

deeds for record, who refused to accept or record the same on account of the insufficient description of said premises, and because no survey of the premises conveyed had been made and no plat thereof was filed or of record.

"That thereupon defendant immediately communicated such facts to plaintiff, and that plaintiff and defendant agreed and did by mutual consent rescind and cancel same; that plaintiff delivered to defendant said promissory notes, and defendant delivered to plaintiff the said conveyance.

"That thereafter, plaintiff returned said conveyance to defendant, so that he might present the same to said register of deeds again, and endeavor to have same recorded; and that at the same time defendant returned said notes to plaintiff to be held by him upon the understanding and agreement that said notes should be surrendered upon the return of said conveyance, if the same were not recorded by said register of deeds; that said defendant again presented said conveyance to said register of deeds for record, who again refused to record same, and that defendant notified plaintiff of such fact, and offered to return said conveyance to him for cancelation upon condition that plaintiff surrender said notes; which plaintiff refused to do; and that the consideration for said notes had failed.

"That defendant has at all times been ready, willing, and able to return said conveyance, and has offered to do so in many occasions; but that plaintiff has refused to return said notes to him; and that notwithstanding the refusal of plaintiff to return said notes in accordance with his promise, defendant has on many occasions offered and tendered plaintiff the amount due upon said notes, upon condition that plaintiff survey and plat said land, or cause said deed to be recorded; that defendant offers to surrender up the said conveyance for cancelation upon rescission of said agreement, or to execute and deliver to the plaintiff a reconveyance of said premises, as the court shall direct.

"Further answering said complaint, and as a counterclaim to the plaintiff's cause of action, defendant alleges and shows to the court:

"That at the time of the delivery of the promissory notes described in the complaint to the plaintiff, the plaintiff delivered to the defendant the conveyance of the premises hereinbefore mentioned which defendant was to present to the register of deeds of said Ransom county for

recording, and plaintiff then stated and represented to defendant that he would receive and hold said notes by way of earnest or pledge for the return and cancelation of the said conveyance in case the same was not recorded for any reason; that defendant relying upon said statements, representations, and promises, and not otherwise, delivered said notes to the plaintiff; that said statements, representations, and promises were false and fraudulent, and were made for the purpose of deceiving defendant and inducing him to deliver said notes to the plaintiff and to take said conveyance, and without any intention upon the part of plaintiff of carrying out said promises.

"That defendant did present said conveyance to the register of deeds for recording, but said register of deeds refused to record same, and that defendant offered to return said conveyance to plaintiff and demanded a return of said notes.

"That plaintiff refused and still refuses to return said notes to defendant, or to cancel the same; that said defendant is able and willing to return said conveyance to plaintiff, and now offers to do so, or to surrender the same up for cancelation, or to execute a reconveyance if the court shall so direct."

No reply was made to either of these counterclaims, and on October 28, 1910, the statutory time within which plaintiff might reply having long before expired, defendant submitted a motion for judgment on the counterclaims for failure to reply or demur thereto. Plaintiff appeared by counsel on such motion, and opposed the same. From the statements of counsel for appellant, and from statements made on behalf of respondent, as well as from allegations and recitals contained in different moving papers of respondent, which it is unnecessary to notice at length, it is apparent that the only objection to the granting of said motion was based upon the ground that the counterclaims each failed to state facts sufficient to constitute a defense or counterclaim, for the reason that:

1. Said amended answer and counterclaims fail to allege that any of the acts to be done by either the plaintiff or defendant were to be done before the commencement of the action;

2. Fail to allege that any of the acts on the part of defendant alleged to have been done were done before the commencement of the action. The court denied the motion for judgment, and granted defendant fifteen days in which to amend his pleading, on payment of $10, costs of

motion, and stayed all further proceedings on the part of defendant in the action until the payment of such costs. The defendant elected to stand upon the counterclaims as pleaded, and neither amended the answer nor paid the costs. This order was entered October 28, 1910. Various motions were made by the respective parties at subsequent dates, which need not be noticed. The case came on for trial on the 5th day of May, 1911, at which time counsel, by stipulation, waived a trial by jury. Plaintiff testified as to the execution of the notes and that they had never been paid, and rested. Whereupon defendant renewed his motion on which the order of October 28, 1910, was entered, for judgment on the counterclaims, for failure to reply. The plaintiff objected to the granting of such motion on the ground that no notice thereof had been served upon him, and on the further ground that it was the same motion made "several months ago in which the matter was fully and finally determined at that time." The motion of defendant was denied, and plaintiff moved for judgment. His motion was granted, and the judgment entered from which this appeal is taken. Exceptions were taken and allowed to all rulings of the court adverse to defendant.

Pierce, Tenneson & Cupler, for appellant.

A failure to reply or demur to a counterclaim entitles the defendant to judgment, on proper motion. Rev. Codes, 1905, Sec. 6864; Heebner v. Shepard, 5 N. D. 56, 63 N. W. 892.

This is true whether the counterclaim is legal or equitable. Dunham v. Travis, 25 Utah, 65, 69 Pac. 468; 11 Enc. Pl. & Pr. 1035; 6 Enc. Pl. & Pr. 76.

In the absence of statute, a defendant may plead any matter of defense accruing up to time of answer. 3 Enc. L. & P. 1317; Wormser v. Metropolitan Street R. Co. 98 App. Div. 29, 90 N. Y. Supp. 714; Cass v. Higenbotam, 100 N. Y. 248, 3 N. E. 189; Rev. Codes 1905, Sec. 6860; 31 Cyc. 131; Story & I. Commercial Co. v. Story, 100 Cal. 30, 34 Pac. 671; Wrege v. Jones, 13 N. D. 267, 112 Am. St. Rep. 679, 100 N. W. 705, 3 Ann. Cas. 482; Maxwell, Code Pl. chap. 12, p. 543, note 1; Hanson v. Skogman, 14 N. D. 445, 105 N. W. 90; People ex rel. Crane v. Ryder, 12 N. Y. 433; Estes, Pl. Boone's 4th ed. 1-198; Clyde v. Johnson, 4 N. D. 92, 58 N. W. 512.

A pleading will be upheld when it contains allegations of fact sufficient to fairly inform the opposite party of the nature of the claim against him. Weber v. Lewis, 19 N. D. 473, 34 L.R.A.(N.S.) 364, 126 N. W. 105; Donovan v. St. Anthony & D. Elevator Co. 7 N. D. 518, 66 Am. St. Rep. 674, 75 N. W. 809.

A pleading will be more liberally construed when first attacked at time of trial, by objection to the introduction of evidence. Walters v. Rock, 18 N. D. 45, 115 N. W. 511; Weber v. Lewis, 19 N. D. 473, 34 L.R.A.(N.S.) 364, 126 N. W. 105; First Nat. Bank v. Laughlin, 4 N. D. 401, 61 N. W. 473.

The sufficiency of the allegations of an answer to state a defense or counterclaim cannot be raised by motion, but must be taken advantage of by demurrer. Gjerstadengen v. Hartzell, 8 N. D. 424, 79 N. W. 872.

A promise made without any intention of performing it constitutes actual fraud. Rev. Codes, 1905, Sec. 5293; Tamlyn v. Peterson, 15 N. D. 488, 107 N. W. 1081; Walters v. Rock, 18 N. D. 49, 115 N. W. 511.

A. C. Lacy, for respondent.

The granting of judgment upon motion is not viewed with favor by the court. 31 Cyc. 605.

And such motions are allowed, in the discretion of the court. 3 Estes, Pl. Boone 4th ed. § 4609; 31 Cyc. 617; Bannister v. Michigan Mut. L. Ins. Co. 111 App. Div. 765, 97 N. Y. Supp. 843; Rev. Codes, 1905, Sec. 6860; Rev. Codes 1905, Sec. 6861.

The claim of a defendant which he may offset against the plaintiff's cause of action must be one which he could enforce against the plaintiff at the time of the commencement of the suit. Simpson v. Jennings, 15 Neb. 671, 19 N. W. 473; Gurske v. Kelpin, 61 Neb. 517, 85 N. W. 557; Kansas Loan & Invest. Co. v. Hutto, 48 Kan. 166, 29 Pac. 558; McKinney v. Sundback, 3 S. D. 106, 52 N. W. 322.

Defendant's offer to return the deed he secured from plaintiff is not sufficient. A redelivery is not a retransfer. Rev. Codes, 1905, Sec. 4956; Johnson v. Burnside, 3 S. D. 230, 52 N. W. 1057.

Where defendant demands judgment on the pleadings, unless upon a money demand, it is necessary to submit proof. Heebner v. Shepard, 5 N. D. 56, 63 N. W. 892.