I dissent. In my opinion the majority opinion is attempting to demonstrate that two and two make something different than four. Further than that in accordance to the holding of the majority opinion, there is awarded to the plaintiff a greater amount than he demanded in the complaint even after the complaint was amended by the plaintiff in the trial court increasing the amount thereof. As I understand it this court, in the exercise of its original jurisdiction, must consider the record upon the issues as framed, upon pleadings submitted in the trial court, and that it is neither the time nor the place in this court to frame new issues or to submit new pleadings.
This is an action to recover the balance due for the construction of an elevator and to foreclose a mechanic’s lien thereupon. From a judgment of the district court entered in favor of the respondent and against the appellant, Donovan, for $3,451.66, interests and costs included, *215and for foreclosure of mechanic’s lien thereupon, the defendant Donovan has appealed and demands a trial de novo. In August, 1908, the respondent entered into contracts for the construction of an elevator of 40,000 bushels capacity, at Wales, North Dakota, and for a duplicate elevator, at Mowbray, North Dakota, of like capacity. The construction price agreed upon for the elevator at Wales, North Dakota, was $7,000 and for the elevator at Mowbray, North Dakota, likewise $7,000, plus excess freight charges for securing the delivery of materials at said Mowbray. These elevators were constructed in the year 1908. Difficulties having arisen between the parties concerning the payment of the construction prices, the respondent filed a mechanic’s lien against the elevator at Wales, claiming a lien upon such elevator in the sum of $2,199.63, principal, as against the Linden Investment Company, as owner of the property and the party chargeable with the debt for the construction thereof. Said respondent also filed a mechanic’s lien against the Mowbray elevator, upon the building alone, for the sum of $2,106,17 principal, as against said Linden Investment Company as the owner thereof and the party chargeable with the deht. Thereafter, in the circuit court of the United States, an action was commenced by the respondent against such Linden Investment Company, setting up two causes of action, seeking to recover the balance of the construction debt for each of such elevators and for the foreclosure of the respective mechanics’ liens thereupon. In that action, the Investment Company answered, presenting the issue that, as to the first cause of action concerning the Wales elevator, the construction thereof was not pursuant to contract in that the elevator, as constructed, was of less capacity than that agreed upon between the parties, and that, as to the second cause of action, the appellant herein, Donovan, was the person with whom the respondent made the contract, and chargeable with the debt.
After the trial in the United States circuit court, judgment was finally rendered in May, 1913, against the Linden Investment Company upon both causes of action, for $3,614.57, being principal and interest less $1,270 damages, for failure of the respondent herein to construct the elevator pursuant to contract.
This case appealed to the United States circuit court of appeals, and, subsequently, in January, 1916, the judgment of the United *216States circuit court was modified (see 136 C. C. A. 121, 221 Fed. 178, 181); the judgment, covering the second cause of action upon the Mowbray elevator, was dismissed without prejudice to commence another action; the judgment concerning the first cause of action upon the Wales elevator was affirmed and judgment ordered for $1,367.92 (with interest included, being $1,807.19, or one half of the award made in the circuit court). This judgment so rendered necessarily included a deduction of $635 allowed for damages through failure to construct pursuant to contract. This action accordingly was subsequently commenced in July, 1914, in the district court of Cavalier county, against said Linden Investment Company and the appellant herein, Donovan, to recover for the construction price of such Mowbray elevator, and for the foreclosure of the mechanic’s lien thereupon. Trial was there had in December, 1917. Subsequently, in March, 1919, the trial court made its findings and conclusions determining the amount of the indebtedness due the respondent to be $3,106.17, from which should be deducted $900 as an offset, for damages sustained by the appellant for the failure to construct the elevator pursuant to contract, but, as the amended complaint demanded only the sum of $2,845.40, judgment accordingly was ordered for the respondent, and against the appellant, for $1,945.40 principal, instead of $2,206.17, and for foreclosure of the lien. The action was dismissed as to said Linden Investment Company. From the judgment so entered on such findings, this appeal is prosecuted. The appellant caused to be filed a supersedeas bond and a bond under § 7709, Comp. Laws 1913. Pursuant thereto the trial court, in January, 1919, released this judgment against the appellant as a lien upon his real estate in Cavalier county, North Dakota. The appellant herein challenges the judgment so rendered in the trial court, principally upon the ground that the trial court has erroneously computed the amount due the respondent, and has failed to give credit to the respondent for $803.29, that has been paid and received by the respondent upon the debt involved in the construction of these elevators, and upon the further ground that the lien of the respondent is invalid, and that by reason thereof the appellant was entitled to a jury trial. The appellant concedes that the dismissal of the action as against the Linden Investment Company was correct. The question before this court therefore involves, principally, *217a problem in arithmetic. The respondent contends that the correct amount due for the Mowbray elevator is $3,106.17. The appellant contends that the correct amount due is the sum of $2,302.88, less whatever amount should be deducted for failure to construct in accordance with the contract. Various computations are made in the briefs.
Manifestly the amount that the respondent should be entitled to receive for the construction of these elevators is the contract price for both of them less the amount that has been paid upon such construction price, by personal payments, through the judgment of the United States courts, or by deductions to be made concerning the Mowbray elevator for failure to construct in accordance with the contract. The respondent does not dispute the statement rendered by it covering the balance due for the construction of these elevators, which was the basis of the causes of action instituted in the United States circuit court. This statement is as follows:
Contract at Wales, N. Dak................. $7,000.00
Tester & Sieves .......................... 20.50
$7,020.50
$7,000.00 Contract at Mowbray, N. Dak,
20.50 $7,020.50 Tester & Sieves ...........
Extra freight at Mowbray................... 240.27
$14,281.27
Credits.
Freight paid at Wales...................... $820.87
Freight paid at Mowbray ................... 144.60
Sept. 14-th check .... 1,000.00
“ 19th “ .... 1,000.00
Oct. 9th “ .... 1,000.00
“ 17th “ 2,000.00
Nov. 10th “ .... 4,000.00
Unloading 2 cars stone 10.00 9,975.47
Balance $4,305.80
*218This showed a balance of $4,305.80, unpaid principal. In the United 'States courts, the amount due for the Wales elevator is finally determined to be $2,002.92, less $635 damages, leaving as a net amount $1,367.93 principal. Clearly this amount was paid pursuant to the Federal judgment on such balance existing for the construction of both of said elevators. This accordingly left a balance of $2,302.88. The trial court was awarded $900 for breach of the construction contract through failure to construct at Mowbray an elevator of the capacity agreed upon. The trial court has determined that the specifications in the contract for the construction of the elevator at Mowbray covering the specific sizes of such elevator did not express the real agreement of the parties, for the reason that such specifications as to the dimensions provided for an elevator of only 32,000 bushels capacity, instead of 40,000 bushel capacity, as the parties really intended and so agreed; and that the appellant, Donovan, relied upon the assurance and representations of the respondent in regard to such contract concerning the capacity of the elevator to be constructed. In view of the controverted questions of fact in the record we are not disposed to disturb the finding of the trial court in that regard.
The following is therefore the statement of the account between the parties, viz.:
Dr. Balance due for construction of both elevators pursuant to statement rendered by respondent, principal ................................. $4,305.80
Or. Federal court judgment Principal ....................... $1,367.92
Damages........................ 635.00
Total........................... $2,002.92
Damages for failure to build elevator at Mow-bray of the agreed capacity, as allowed by trial court........................... 900.00
Total.................................... $2,902.92
Balance due, principal, ........................... $1,402.88
The question of the validity or invalidity of the mechanic’s lien is immaterial in this appeal. The real question of litigation before this *219court is the amount due the respondent; the lien of the judgment by the trial court already has been released by the filing of the bond mentioned. The appellant did not specifically request a trial by jury for the appellant, Donovan, in the trial court. Even though the lien were invalid, a money judgment might be approved and affirmed before this court in such action. McCormack v. Phillips, 4 Dak. 506, 34 N. W. 29; Moher v. Rasmusson, 12 N. D. 71, 74, 95 N. W. 152; Smith v. Grill, 37 Minn. 455, 35 N. W. 178; 27 Cyc. 473. The judgment of the trial court should be modified and be entered as modified in the trial court for the sum of $1,402.88, with interest thereupon at 7 per cent per annum from October 14, 1908, until July 1, 1915, and at the rate of 6 per cent per annum since July 1, 1915, together with the costs in the district court, but neither party should recover costs in this court.