Yarbrough

The action was based upon the theory that defendant refused to account to plaintiff for one-third of the selling price of certain lands in the state of North Dakota, the legal title to which was held by said defendant for “mutual benefit of the said plaintiff, P. L. Yarbrough, the said defendant, F. W. Herbert and the said C. D. Ackerman in equal shares. ’ ’ The trial court found the existence of a contract among these three according to the claim of respondent: “that the defendants sold said land for the sum of $5280; that the expenses of the sale and the money advanced by defendant was the sum of $559.88; that the defendant, after deducting the money advanced and the expenses of the sale of said land, had on the 1st day of May, 1918, the sum of $1573.37 in his possession belonging to the plaintiff,” and rendered judgment for respondent for that amount.

It is not disputed that the evidence supports the finding that such contract was entered into and that the property was sold for said consideration, although some complaint is made of the action of the. court in awarding a money judgment for the entire amount, since it appears that a part of the consideration in the hands of…