Page:North Dakota Reports (vol. 3).pdf/226

He had not intended to stay there, unless we had a settlement, but Mr. Aitchison asked him to stay, and said that if we would stay he would pay us for the indebtedness of Mr. Ober, and on that condition we stayed.” This was on direct examination, and, if unqualified, would support the finding. But on cross-examination she testified that she did not remember exactly what Mr. Aitchison said; “I remember that I got from what he said that he would pay the wages.” And further on: “I heard him say that, before Ober got his interest out of the farm, he would pay this money.” This witness is positive about the conditional promise. The absolute promise seems to have been her deduction from what was said. But it would be bordering upon the absurd to suppose that appellant, at the same time, and in reference to the same matter, made both a positive and conditional promise of performance. The appellant testified: “I told him [McMillan] I thought he ought to have something, and that, before I made over anything to this Ober, I would see that they were paid.” And on cross-examination: “I told him * * * that I should not let my countryman suffer; that I would take care that I made Ober pay him before I gave him. any title to the half section.” The testimony of this witness showed that he had a parol contract with this man Ober, by the terms of which, under certain contingencies, he was to convey to Ober one half of the farm on which this work was to be done. The evidence of the two parties who made the agreement shows that it was conditional. A third party who heard it also testifies to its conditional character, but uses language which, if not subsequently qualified, would import a positive agreement. Nor is it possible to avoid giving some consideration to the circumstances under which this agreement was made. It is undisputed that at the same time, and as a part of the same transaction, appellant, employed respondents to work for him on the farm for one year,—he says, for the sum of $460; McMillan says, for the sum of $38 per month. Either sum was the full ordinary price for such services in that locality. Respondents continued to work for appellant a portion of the-succeeding