This court has so ordered. Any injunction, to be of any force, necessarily must be against the new Industrial Commission. Upon the motion made by the new Attorney General it is further apparent that a new contract has been made, involving the subject-matter of this appeal, namejy, a new contract superseding the old contract. The cause, therefore, from the viewpoint of the Attorney General, representing the present defendants, the appellants in this action, and, as it now appears to this court therefrom, is moot. The respondent, though given notice, has filed no objections to the motion or showing of the Attorney General. The appeal therefore should be simply dismissed. Tubbs v. Sather, 29 N. D. 84, 149 N. W. 567; Thompson v. Vold, 38 N. D. 569, 165 N. W. 1076. See note Ann. Cas. 1912C, 247. This will be in effect an affirmance of the judgment. Stimson v. Stimson, 30 N. D. 78, 83, 152 N. W 132. This will operate accordingly to permit the judgment entered by the trial court to stand as such, and will not serve in any manner to embarrass the new Industrial Commission, concerning the new contract, or by any determination upon the merits with such new Industrial Commission as defendants.
Grace, C. J., concurs.
JOHN KUPFER and HARLAND KUPFER, Appellants, v. JAMES McCONVILLE, Respondent.
(185 N. W. 1005.)
Work and labor—where plaintiffs abandoned their contract they could not recover under quantum meruit.
Plaintiffs contracted to construct a well under a special contract. They failed to substantially perform the contract, and voluntarily abandoned it, over the protest of the owner, before they had constructed a well at all. It is held, for reasons stated in the opinion, that no recovery can be had on quantum meruit for the value of the labor furnished and the pipe put into the ground.
Opinion filed Nov. 18, 1921. Rehearing denied Dec. 23, 1921.
