claim to recover on a sale to Joseph Huber. The plaintiffs elected to base their claim on a sale contract, promising a commission for three times as much as the sale to Huber. They did not choose to make or to urge a claim to the lesser commission, as it would have lessened their claim to recover the greater commission. Had the court volunteered to do it for them, they might have assigned it as error. On the issues as presented, the plaintiffs had a fair trial. The verdict is sustained by the evidence and the judgment should be affirmed.

CARL WESTERLAND v. THE FIRST NATIONAL BANK OF CARRINGTON, NORTH DAKOTA, a Corporation, and G. S. Newberry.

(L.R.A.-, 164 N. W. 323.)

Contracts

money paid under.

― evidence - lapse of time

action to recover - insanity incompetency remoteness of evidence - prejudicial error.

1. Where one brings an action to recover money paid under a contract, on the ground that at the time of the making of the contract and the note and mortgage, which were parts of the same transaction, he was insane, evidence that at a point of time four years or more subsequent to the time of the making of the contract, he was adjudged insane by the board of insanity, is inadmissible and incompetent, and too remote to prove his mental condition at the time of the making of the contract; and when admitted over the proper and timely objections of the defendant is prejudicial and reversible error, for which new trial will be granted.

Contracts-capacity to make - determination of-true test-knowledge of nature of contract—at time made.

2. Capacity to make a contract is not determined by whether one has much or little intellect. The true test is, Had the party who seeks to avoid the contract on the grounds of incapacity by reason of alleged insanity, sufficient mental capacity to know the nature of the contract and the terms thereof? if he had, he may be required to perform it.

NOTE. On admissibility, on issue as to mental condition, of evidence that one has been adjudged insane, or has been confined in an insane asylum, see annotation of this case in L.R.A.—,

Contracts-disaffirmance of - money paid — action to recover back

be timely brought — ratifications.

3. Disaffirmance of contracts and actions brought to recover money paid thereunder should be timely, otherwise, long delay tends to prove ratification.

Opinion filed July 9, 1917. Rehearing denied August 23, 1917.

Appeal from the District Court of Foster County, J. A. Coffey, Judge. Reversed.

Edward P. Kelly, for appellants.

"The test of whether a person is competent to make a deed is that he should be qualified to do that particular business rationally; not, on the one hand, that he should be capable of doing all kinds of business with judgment and discretion, nor, on the other, that he should be wholly deprived of reason so as to be incapable of doing the most familiar and trifling work." Nelson v. Thompson, 16 N. D. 295, 112 N. W. 1058; Jackson ex dem. Cadwell v. King, 4 Cow. 207, 15 Am. Dec. 354.

"Nonexpert witnesses are competent to give their opinion as to the mental condition of testatrix in a proceeding contesting the probate of the will on the ground of unsoundness of mind at the time of making the will." Halde v. Schultz, 17 S. D. 465, 97 N. W. 369; State v. Leehmam, 2 S. D. 171, 49 N. W. 3; People v. Conroy, 97 N. Y. 62; State v. Pennyman, 68 Iowa, 216, 26 N. W. 82; Territory v. Hart, 7 Mont. 489, 17 Pac. 718; Webb v. State, 5 Tex. App. 608; Hardy v. Merrill, 56 N. H. 227, 22 Am. Rep. 441; State v. Klinger, 46 Mo. 228.

"A court is not authorized to submit to a jury an issue as to which there is no evidence, and such submission by the court constitutes reversible error." Independent School Dist. v. Merchants' Nat. Bank, 68 Iowa, 343, 27 N. W. 255; Dondero v. Frumveller, 61 Mich. 440, 28 N. W. 712; Whitsett v. Chicago, R. I. & P. R. Co. 67 Iowa, 150, 25 N. W. 104; Sheffield v. Eveleth, 17 S. D. 461, 97 N. W. 367.

The question is whether or not the person was qualified to do the particular business in hand, rationally. Nelson v. Thompson, 16 N. D. 295, 112 N. W. 1058; 1 Whart. & S. Med. Jur. §§ 2, 74; Titcomb v. Vantyle, 84 Ill. 371; Baldwin v. Dunton, 40 Ill. 188; Hovey v. Chase, 52 Me. 305, 83 Am. Dec. 514; Osmond v. Fitzroy, 3 P. Wms. 129, 24 Eng. Reprint, 997; Shelford, Lunatics, 27.

T. F. McCue, for respondent.

Findings of the county court and commissioners of insanity are proper evidence of the matters therein found.

Insanity, when once established by competent and lawful authority, is presumed to continue. 4 Wigmore, Ev. § 2530.

"A condition of mental disease is always a more or less continuous one, either in latent tendency or in manifest operation. It is therefore proper, in order to ascertain the fact of its existence at a certain time, to consider its existence at a prior or subsequent time." 1 Wigmore, Ev. § 233; Shailer v. Bumstead, 99 Mass. 112.

Evidence of mental condition before and after the act is admissible 16 Am. & Eng. Enc. Law, 614.

The evidence clearly shows fraud and deceit, and that an undue ad vantage was taken of a weak and incapable mind. Respondent did not know, nor did he understand, the meaning of the transaction. Comp. Laws 1913, § 5849.

"The paramount and vital principle of agency is good faith, for without it the relation of principal could not well exist." Morris v. Bradley, 20 N. D. 649, 128 N. W. 118.

The proof shows conclusively that respondent was insane prior to the transaction here involved, and the presumption is that insanity continued at least until the contrary is clearly shown. 16 Am. & Eng. Enc. Law, 614, and cases cited; Dawson v. Wisner, 11 Iowa, 6.

GRACE, J. The complaint, among other things, alleges that the defendant Newberry was the cashier of the first National Bank of Carrington, of which plaintiff was a customer and transacted his financial business. That is, such customer was in the habit of counseling with Newberry with reference to such financial business, and did confide in and take the advice of said Newberry in financial matters. That Newberry on the 28th day of September, 1909, advised the plaintiff that it was plaintiff's debts that were causing him to worry and producing his ill health, and that to relieve the same (debts) he should sell his farm. At said time Newberry produced a writing of which the following is a

copy:

"For $1 in hand paid by G. S. Newberry I hereby grant on him an exclusive option for sixty days on purchase or sale of the following lands:

Southof 22, northwest of 26, all in 147, R. 65, including windmills, buildings and all other improvements on the farm. Price $23 per acre net to me. Terms $3,000 cash, balance five annual payments at 6 per cent interest. Good paper. The privilege of withdrawing the option by notice in writing inside of thirty days is reserved. All plowing done to be paid for at $1.25 per acre and possession of buildings retained until April 1, 1910."

The plaintiff further alleges that at the time of the signing of said option the plaintiff did not know that said option provided for an exclusive sale, but plaintiff believed that such writing was necessary in order for the said Newberry to obtain a purchaser for said land. The plaintiff further alleges that at the time of signing such contract his mind was in such condition that he did not know what he was doing, or realize the binding effect of said writing,—all of which was known to Newberry and of which Newberry took advantage at said time. The plaintiff further states that on the 2d day of November, 1909, the defendant Newberry told the plaintiff he was ready to carry out said contract for the purchase of said land and buy the same himself, and demanded of plaintiff a deed to said land, advising said plaintiff at said time that he, the defendant, would place a mortgage upon the premises for the purpose of paying the plaintiff $3,000 cash provided in said option. Plaintiff refused to make such deed. Newberry demanded the sum of $480 by way of damages. Plaintiff further alleges that defendant threatened suit against the plaintiff for said amount of money, and alleges that on account of his mental condition he was put in fear, and caused to believe that if he did not settle with said Newberry he would lose his farm. The plaintiff then executed a note for $860, which also covered other amounts owing by the plaintiff to the bank, which was secured by a mortgage on the land in question. Plaintiff alleges that at the time said mortgage and note were paid by the bank at Barlow the plaintiff was insane, and was afterwards placed in the insane asylum at Jamestown, North Dakota. Plaintiff alleges that the offer which the defendant made to purchase said farm was not in good faith, and that the whole transaction was a conniving scheme for the purpose of defrauding the plaintiff of said money. That at the time the plaintiff's mind was deranged, all of which was well known to the defendant.

The defendant Newberry for his answer makes, first, a general

denial, and further by way of defense alleges that on the 28th day of September, 1909, the plaintiff solicited the defendant to purchase or procure the purchase of certain real estate then the property of plaintiff, and for a consideration did make, execute, and deliver to the defendant the option as hereinbefore set forth, which option was on the 28th day of October, 1909, assigned by the defendant to his wife, Mary G. Newberry. The answer further alleges that more than thirty days from the execution and delivery of said option, on the 2d day of November, 1909, the plaintiff again called upon the defendant and asked to withdraw said option, and that by mutual agreement of the parties and the consideration of the surrender of said option, the plaintiff agreed to pay, and did pay, to the defendant the sum of $1 per acre, amounting to the sum of $480. The answer further denies all allegations of fraud.

The facts in the case are as follows: The plaintiff was the owner of 480 acres of land. On the 28th day of September, 1909, he granted an option to the defendant for sixty days, which gave the said Newberry the right to find a purchaser to said land, or purchase the same himself, within the sixty-day period. The plaintiff also had a reservation in such option of withdrawing the same by notice in writing inside of thirty days. The plaintiff did not withdraw the option within thirty days, and did not attempt to do so until after the thirty-day period had expired. The plaintiff had transacted business for quite a long period of time prior to the date of the option contract, with the First National Bank of Carrington, of which Newberry was cashier. After receiving such option the defendant assigned the same to his wife. The plaintiff desired after the thirty-day period had expired to withdraw the option and cancel the same, which Newberry refused to do unless he was paid the sum of $480, which was agreed to by the plaintiff, and a note for $860 executed, which included, among other items, the $480, which was secured on the land in question.

The first assignment of error by the defendant is one in which he complains that the court erred in receiving in evidence over the objection of appellant exhibits F, G, H, I, J, K, L, and M inclusive, which exhibits constituted the record of the board of insanity for Foster county in the matter of the insanity proceedings against Carl Westerland, the plaintiff in this case, which proceedings as to the insanity of