U. S. 181, 25 L. ed. 907; Thomas v. City Nat. Bank, 40 Neb. 501, 24 L.R.A. 263, 58 N. W. 943; Minnesota Mut. L. Ins. Co. v. Tagus State Bank, 34 N. D. 566, L.R.A.1917A, 519, 158 N. W. 1063; U. S. Rev. Stat. § 5163, Comp. Stat. 1916, § 9702. GRACE, J. This case is an appeal from a judgment of the district court of Hettinger county, and an appeal from an order of the said court denying the motion of the defendant notwithstanding the verdict, or, in the alternative, a new trial. The plaintiff, in his complaint, in substance, states that defendant is a banking corporation under the laws of the United States of America. That the plaintiff deposited with defendant an assignment of contract for the purchase of the southwest quarter of section 23, in Township 135, north of Range 97, at the same time deposited a warranty deed for said land, both to be delivered by said defendant to W. T. Loomis upon the payment to said defendant by W. T. Loomis of one thousand nine hundred twenty-four and 500 dollars ($1,924.59), for the account and credit of the plaintiff, on or before sixty (60) days from March 27th, 1911. That said deposit was accompanied with a letter of instructions in words and figures as follows: The First National Bank, New England, N. Dak. New England, N. Dak., Mar. 27th, 1911. I herewith deposit with you assignment contract for the purchase of S. W. 23–135-97, also warranty deed for the same land, all to be delivered to W. T. Loomis on payment of nineteen hundred twenty-four and fifty-nine one-hundredths dollars in your hands for my account and credit on or before sixty days from date. Cash received to-day $40, leaving balance of $1,884.59. Frank Keith. That defendant, within said period of sixty days, turned over and delivered to said W. T. Loomis the assignment of contract and warranty deed of said premises; that defendant failed, neglected, and refused, and still fails, neglects, and refuses, to pay this plaintiff the sum of $1,884.59, or to place the same to plaintiff's account and credit, or any part thereof, though demanded, and claims damages in the sum of one thous and eight hundred eighty-four and 5100 ($1,884.59). The defendant answering interposes a general denial, and on information and belief alleges that on the 1st day of January 1910, W. T. Loomis was the owner of said land and sold the same to plaintiff under contract for deed, payable in instalments and subject to prior indebtedness owed by Loomis and a then lien against the said land; and further alleges that it was agreed between W. T. Loomis and the plaintiff that W. T. Loomis should offer said land for sale to Mary Carlon, with whom Loomis was then in communication. It is further alleged by the defendant that it was agreed between Loomis, plaintiff, and one H. B. Baillet, in order to complete the sale of said land to said Carlon, or to such person as Loomis might be able to make sale to, and in order that such sale might be more readily consummated during the absence of plaintiff, assignment of the contract held by plaintiff together with the warranty deed from plaintiff to Loomis should be left with Baillet, who was acting in conjunction with Loomis in the sale of said land, and defendant further alleges that it was there agreed that in event Loomis should deem it necessary to place said documents of record in the office of the register of deeds in the county of Hettinger, in order to show merchantable title to said land any time, that the said Baillet should deliver the said documents to Loomis for such purpose, or himself have the same recorded. That Loomis and Baillet deemed it necessary, in order to show a merchantable title to said land in said Loomis for the purpose of sale, that said document should be placed of record, and they thereupon did have the same recorded in the office of the register of deeds for Hettinger county. Defendant further alleges that he had no custody or control of said documents nor any knowledge relative thereto, that said documents were always in the possession and under the control of H. D. Baillet and W. T. Loomis; that the transaction regarding the sale of said land to Mary Carlon was conducted by Loomis and Baillet in behalf of the plaintiff, and without knowledge of defendant, and for the bene fit and profit of plaintiff and said Loomis and Baillet. Defendant further alleges that if the documents were placed with the defendant in the manner alleged by plaintiff, that such deposit was immediately released by directions of the plaintiff, then and there given contemporaneously with such deposit, that the same should be delivered to W. T. Loomis when he should request, and that the same were delivered to Loomis upon his request and demand and according to directions aforesaid. The facts in the case appear to be as follows: That on March 27th, 1911, the plaintiff delivered the assignment of contract then held by him for the purchase of the southwest quarter of section 23, township 135, north of range 97, and also a warranty deed to the same premises to the First National Bank of New England, North Dakota, and also at the same time delivered to the bank a certain written instruction with reference to the delivery of said assignment of contract and warranty deed, which is "exhibit A” in the case. That the contract and deed were to be delivered to W. T. Loomis on the payment of one thousand nine hundred twenty-four and 5/100 dollars ($1,924.59) to the defendant for plaintiff within sixty (60) days from March 27th, 1911; that at the same time Loomis has paid $40 by a check to the plaintiff upon the purchase price of the plaintiff's equity in the said land, leaving a balance of $1,884.59 yet to be paid by Loomis to plaintiff. It is also a fact that during all the time of the transactions in this case, H. D. Baillet was the vice president of said First National Bank of New England, North Dakota, and one of the directors thereof, and performed part of the work in said bank, at times waited on the customers and otherwise took part in the business transactions in the bank. It is a further fact that the assignment of contract and warranty deed were kept by the defendant, after receiving them, for some months, and were delivered to said Loomis by the defendant by its vice president, Baillet. It is a further fact that defendant was in the habit of receiving papers in escrow and kept a file in his bank for papers left in escrow, and acted in similar capacity upon other occasions, and generally received papers from its customers in the course of its business. We are now going to examine specifications of error assigned by the appellant. We have examined the same with considerable care and have scrutinized each assigned error for the purpose of determining whether the matters assigned as errors are really and truly reversible errors. The first error assigned is the overruling by the court of the objection of counsel for the defendant to the offer of plaintiff's counsel relating to the offer of plaintiff in evidence of deposition of testimony of one H. D. Baillet for the purpose of showing Baillet's relation with the 36 N. D.-21. First National Bank at the time of the alleged transactions. The objection of the counsel for the defendant to the introduction of such testimony was that it was incompetent, irrelevant, and immaterial; that the transaction was not within the scope or powers of a national bank; that the contract sued upon is ultra vires; that there were no allegations set forth in the complaint that there was any consideration to the bank for the deed or on account of the contract, and no delivery by the bank, as alleged, and no transfer of the title to the land in question is alleged or could be made under the allegation of the complaint. We think that the court rightly overruled all such objections made to the introduction of such deposition made by the counsel for the defendant. Such testimony was competent to prove Baillet was an officer of the bank, his official connection therewith, his interest as a stockholder and part owner of such bank, that he performed duties in and about the conduct of said bank. It is unnecessary to allege in the complaint that the transaction sued upon was within the scope and powers of a national bank; that was purely a matter of defense to be proved by competent testimony. Such contract was not ultra vires, as it was a common incident to the duties usually assumed and performed by such bank, and of all banks, and the testimony shows that this defendant was in the habit, and it was its custom to perform such duties. It was not necessary to allege any delivery by the bank, or transfer of any title to this land, the plaintiff having a perfect remedy without any such allegation in the complaint. All such objections by the counsel for the defendant were properly overruled by the court. It was not error for the court to overrule objections of defendant's counsel to the testimony referred to in defendant's second assignment of error, for the reason that such testimony was competent to show delivery of a contract and deed to Baillet, he being an officer of the bank, and for the further purpose of showing what became of the papers, also to show such papers to have been recorded. The court did not err in overruling the objection of defendant's counsel to the offer of plaintiff's counsel to read to the jury a portion of the cross-examination of Mr. Baillet, on page 14, and the first two questions on page 15 of such deposition, as such testimony refers to the contract and the assignment thereof, and the drawing of "exhibit A" by the witness, and shows further that "exhibit A," being the written direction of the plaintiff to the bank, was in duplicate, and a duplicate copy thereof was left with the witness Baillet, as an officer of the bank, at the time' of leaving of the assignment and deed by Keith, and is exceedingly material testimony. Referring to assignment No. 4, we state that the court did not err in sustaining the objection of plaintiff's counsel to the question asked Kjelson, being as follows: Q. And these transactions that Mr. Baillet carried on in the manner you have already stated, the bank received no benefit from? By Mr. Shippy: Objected to as irrelevant and immaterial. It is wholly immaterial as far as the merit of this case is concerned whether the bank received benefits or not from any transactions of Mr. Baillet. In assignment of error No. 5, each of the court's rulings therein were proper. The court overruled the objection of the attorney for plaintiff to the question, "What did Loomis say in Keith's presence then?" which was a proper ruling, and the court sustained an objection of plaintiff's counsel to the following question, "What did Keith, if anything, say to you in regard to this land in presence of Loomis at that time and place?" and the objection was made that it was wholly contradictory of the terms of the agreement of written instructions left with the defendant bank, to vary the entire terms thereof,-in other words to vary the terms of "exhibit A." Such objection was properly sustained upon this and the other grounds set forth in such objections. The court did not err in denying defendant's motion for a directed verdict in favor of the defendant, for the reason which we have already suggested in discussing defendant's assignments of error, and for the further reason, that it appears from the admission in defendant's answer that the contract and deed in question were placed of record in Hettinger county, North Dakota, and that therefore plaintiff was devested of whatever title he had. So far as the records were concerned, it is shown to all the world by placing the assignment of contract and deed of record. That the plaintiff had been devested of all his interest and the records show Loomis to be the record owner of said land. The instructions in paragraphs 7 and 8, complained of by the de |