my former dissent, and, of course, I concur in the affirmance of the judgment.
Robinson, C. J. I do strenuously dissent, and the reasons of my dissent are as stated in Paulson v. Reeds, 39 N. D. 341, 167 N. W. 375.
The testimony shows positively that the plaintiff did not comply with the listing contract under which the defendant agreed to pay $1.50 an acre for the sale of the land, and that the sale was made for a sum and on terms and conditions which were equal to $900 less than the list price; and at the time of making the sale for the reduced price the defendant did in no manner agree to pay the listing commission of $1.50 an acre. As the evidence shows beyond all dispute, there was a failure to comply with the listing contract.
JOHN RAMSDELL, Appellant v. HARRY F. WARNER, Respondent.
(183 N. W. 281.)
Gifts—verbal “gift” not valid unless possession given or delivery made.
1. A gift is a transfer of personal property made voluntarily and without consideration. A verbal gift is not valid unless the means of obtaining possession and control of the thing are given, nor, if it is capable of delivery, unless there is an actual or symbolical delivery of the thing to the donee. (§§ 5538-5539, C. L. 1913).
Gifts—title to straw given under condition of removal held not to pass.
2. Where W. the owner of certain strawstacks situated on his own premises, tells R. that R. may have as much of the straw as he wants provided it is removed from the premises within a specified time, and where R. does not remove any part of the straw or in any manner take possession thereof or exercise any dominion over it, title does not vest in R., so as to render W. liable for the value of the straw in an action brought by R. against W. charging the latter with having set fire to and destroyed the strawstacks.
