*509On Petition for Rehearing.
Bbuce, J.A petition for rebearing bas been filed, wbicb, among ■other matters, calls attention to tbe fact that tbe writer of tbe opinion erred in saying that “tbe case before tbis court is a suit in equity on a trial de novo under § 7846, Compiled Laws of 1913,” and in assuming therefrom that tbe errors in tbe admission of evidence before tbe jury, if any, were immaterial.
Counsel is correct in bis criticism that tbe writer of tbe opinion did err. He, in fact, overlooked tbe prior opinion of tbis court in Peckbam v. Van Bergen, 8 N. D. 595, 80 N. W. 759, in wbicb we held that “in an equity case where tbe district court calls in a jury for advisory purposes, the trial is not governed by tbe provisions of § 5630, Rev. Codes 1895, as amended by chapter 5 of tbe Laws of 1897 (being § 7846 of tbe Compiled Laws of 1913) ; nor does tbis court try such cases anew. That statute applies only to such cases as are tried in the district court without a jury.” We have therefore stricken tbe clause from tbe original opinion so that one reading that opinion and failing to read tbe words just written will not be confused thereby. Tbe fact, however, in no way changes tbe opinion or conclusion of this court in tbe case at bar. Tbe court in Peckham v. Van Bergen, supra, expressly stated that, though in such cases tbe verdict of tbe jury is entitled to receive grave consideration at tbe bands of tbe trial courts, and such juries are not called as a mere formality, their verdicts can be set aside if clearly wrong. It would follow that, if their verdicts are clearly right, and, even though incompetent evidence may have been admitted, it is quite clear that tbe jury was not misled thereby, or at any rate that their advisory verdict is in accordance with tbe law, tbe mere fact of tbe introduction of such incompetent evidence will not justify tbe ordering of a new trial. Such, we believe, is tbe case in tbe action before us.
Counsel also criticizes tbe statement of facts made by tbis court, and in wbicb it said that tbe vice president told tbe plaintiff “upon express inquiry that be bad tbe authority to make tbe contract,” and calls our attention to tbe fact that at tbe moment tbe contract was executed all that tbe vice president did was, “with a waive of tbe band, to say that it was all right as it was.” He, however, ignores tbe fact that tbe plain*510tiff positively testified that “at tbe time tbe contract was drawn I walked out with Mr. Jackson and bad a conversation with him; I told him then after you (tbe attorney, Mr. Norton) spoke to me about there was some question in your mind as to this authority, you intimated something along that line. I talked with Mr. Jackson and I told him that we had drawn a contract for the sale of this land with a party, and we made a provision allowing ten days in case we couldn’t deliver the land; that it was not binding upon us, and I told him at that time that I wanted to be sure and certain about his getting this land to us by the 1st of March. There was some encumbrance on the land, and I asked if he would see to having that paid up and having his abstract of title brought down to date, so that the deal could be closed on the date payment became due, and he assured me that everything would be all right; that he was vice president and general manager, and had authority to accept money and to make out contracts, and he had previously stated those things to me, and the fact that he had charge of the outfit out there, — I had been out to call on him a couple of times before the contract was made.”
The petition for a rehearing is denied.