(concurring). Defendant'appeals from a judgment for $758.34 as a balance due upon an account stated. The complaint *501avers that in February 9, 1909, Fred Lemke (the plaintiff’s assignor) was the owner of a farm machinery business and of certain real property in Brocket, North Dakota, and he sold the same to defendant. That on December 30, 1909, an account was stated between the parties, and it was agreed that there was due and owing to Fred Lemke $758.-34, which he assigned to the plaintiff.
The answer denies the statement of an account. It avers that on February 9, 1909, Fred Lemke made a written contract (of which copy is given) to sell and convey to defendant by warranty deed with abstracts of title, lots 14 and 15 in block 4, and lots 1 and 2 in block 3, in Brocket, North Dakota, for which defendant promised to pay $5,807.42; that Fred Lemke failed to comply with the contract and failed to deliver a deed to the lots and failed to deliver all the personal property. On the trial defendant objected to any evidence of an account stated because it appeared the alleged cause of action was based on a special contract for the transfer of real and personal property, and the complaint failed to state the contract or to show any compliance with its conditions.
However, the court admitted evidence showing the making of the contract, the facts bearing on the performance of the same, the delivery of the property, and the making of payments. In short the evidence of the whole transaction was received and the case submitted to the jury in the same manner as if the facts had been properly stated' in the pleadings. It was conceded that a written -contract was made to sell and transfer the property for $5,807.42, and that defendant was entitled to payments and credits amounting to $5,111.48. This left a balance of $695.84. To this there was added for interest $62.50, which made the balance $748.34.
The alleged settlement was made on December 30, 1909. An exhibit was put in evidence, giving every item of the credits, payments, and allowances, amounting to $5,111.48, and defendant has not shown that any item is materially incorrect.
True it is Fred Lemke did not convey to defendant lots 1 and 2 in block 3, for which he held a contract from Olsgard. Defendant obtained from Olsgard a warranty deed paying him $865, which was $750 and interest at 12 per cent from date of contract till the day of the deed, and defendant was given proper credit for the payment. *502There was ample evidence to sustain the settlement and accounting, and to show that it was correct, and it does not appear that any wrong has been done the defendant. However, the complaint should have fairly and concisely stated the special contract and a compliance with the same, the amounts paid by the defendant and the balance due from him. In the conduct of the trial both parties were at fault, but there was no occasion for the appeal.
Judgment affirmed.