It is argued by appellants, however, under their third proposition, that the power of the state to summarily abate a public nuisance must be reasonably and efficiently exercised; the means employed must not be unduly oppressive on individuals, and no expense not necessary to the abatement of the nuisance may be taxed against the person maintaining it. This may be conceded to be a correct statement of the law. on judgment of conviction the removal or destruction of the thing constituting the nuisance, if physical and tangible, may be adjudged, or by bill in equity filed in behalf of the people. But the remedy by judicial prosecution, in rem or in personam, is not, we conceive, exclusive, where the statute in a particular case gives a remedy by summary abatement, and the remedy is appropriate to the object to be accomplished." Here the legislature, presumably after due investigation, has determined that the nuisance should be abated in a summary manner, by the public official thereunto empowered, and that the public interest required that such nuisance should be dealt with in the manner prescribed. The act in question does not undertake to authorize the destruction of property, for it only authorizes the repair or plugging of the well. If the well is plugged, as suggested by appellants in their brief, the well is not destroyed, as such plug may afterwards be removed. Thus it will be seen that the act in question does not provide for the destruc-plugging and the expense which would have tion of property, but only for the abatement of such use of the property as constitutes the nuisance. Applying it to the facts in this case, appellants argue: First, that it was the duty of the well supervisor to have plugged the well, and that he should not have attempted to repair it; second, that, having attempted to repair the well, he failed to accomplish the purpose sought, in that he did not entirely suppress the waste of water,-admitting, however, that he did control the flow of water to at least 1,500 gallons per minute. The difficulty which confronts appellants under their first contention is their failure to show the feasibility of stopping the flow of water in the instant case by been entailed thereby. As we have stated, the evidence is not in the record. From the finding made by the court, apparently no attempt was made to show what the cost of plugging the well would have been, or its feasibility. We do not believe that the statute in question contemplates that the well supervisor shall undertake, at great expense, to repair a well so as to continue the flow for the use of the owner when the waste might be limited at a small expense by plugging the well. The supervisor is the representative of the public, or, rather, the water consumers of the district. The publie has no concern with the question as to whether or not the owner of the land upon which the well is located shall continue to use water therefrom. That is a matter that concerns only the individual. If he received proper notice to place his well in repair and neglects to do so, the public interest de At common law a private individual could abate a nuisance which worked a special injury or hurt to him, and could enter upon the lands or premises of another for such purpose, provided he could do so in a peaceable manner. Joyce, Nuisances, § 368. And the exercise of this right by the individual in a summary manner violates no constitutional provision. There is some conflict in the authorities as to whether a private individual may abate a public nuisance, unless he suffers some special injury therefrom, not common to the general public. Upon reasons it would seem that where a public officer is the representative of the public in that regard, and a public nuisance is maintained which injures the public so represented by him, such officer may, where authorized by statute, enter upon the lands and premises of the party guilty of main-mands only the abatement of the nuisance taining such nuisance, provided he can do so in a peaceable manner, and remove or abate the nuisance, doing no greater injury than is necessary to accomplish the abate ment of the nuisance. If the private individual can lawfully abate the nuisance which injures him, the public official representing the public, and being so empowered by statute, can, acting for and on behalf of the public, lawfully exercise the same rights in behalf of all the public as the private individual can in the protection of his private rights. Thus it will be seen that in this regard the statute in question violates no constitutional provision. by stopping the waste of water. If this nuisance can be abated, as stated, by plugging the well at a trifling expense, whereas to repair the well would entail a large expense, it is, we believe, the duty of the well supervisor to adopt the least expensive method. But, as stated, there is nothing in the record before the court to show what the expense of plugging would have been, or that the result could have been accomplished by the adoption of that method. But the method and means to be adopted to abate the nuisance under the statute rest in the discretion of the well supervisor, and in the absence of a showing of gross abuse of such discretion the courts will not inter- not demand the impossible; neither would fere. As to the second question, we think appellants are foreclosed by the findings of the trial court. These findings have been heretofore set out, and it will be observed that the court found that the well supervisor used due and proper diligence in all things in the making of the repairs in question, that he adopted the proper course, and that it was impractical to have so repaired the well as to have entirely eliminated the waste of water. This being true, appellants cannot escape their liability for costs of repair. It is, of course, the duty, under the statute, of the well supervisor to stop the waste of water, but the law does the appellants be liable by prosecution under an indictment for permitting the waste where it was impossible to obviate it. In view of the findings by the trial court, which are binding here because of the state of the record, appellants are required to respond for the costs and expenses entailed by the repairs made. For the reasons stated, the judgment must be affirmed; and it is so ordered. Hanna, Ch. J., and Parker, J., concur. Petition for rehearing denied October 3, 1917. Annotation-Constitutionality of statute to prevent waste of subterranean waters, natural gas, or oil. Earlier cases considering the question | under annotation will be found in note to Hathorn v. Natural Carbonic Gas Co. 23 L.R.A. (N.S.) 436. The decision in ECCLES V. DITTO, ante, 126, that a statute which provides for the repairing or plugging of an artesian well to prevent waste is a valid exercise of the police power of the state, and not violative of the Federal or the state Constitution, is fully supported by the earlier cases cited in the earlier note. The Hathorn Case, it will be observed, held that a landowner may constitutionally be forbidden by the legislature to pump, from wells located on his property, mineral water from a common reservoir reached thereby, for the purpose of securing gas arising therefrom for sale, and to waste the water, to the injury of the interests of the public and of the owners of springs on neighboring lands. Since the earlier note, the statute considered in the Hathorn Case was before the United States Supreme Court in Lindsley v. National Carbonic Gas Co. (1910) 220 U. S. 61, 55 L. ed. 369, 31 Sup. Ct. Rep. 337, Ann. Cas. 1912C, 160; and it was there held that a landowner engaged in collecting and vending as a separate commodity the carbonic acid gas contained in natural mineral waters existing in a common underground reservoir is not deprived of his property without due process of law, contrary to the United States Constitution, 14th Amendment, by the provisions of such a statute, which, as construed by the state courts, forbid him from pumping or otherwise artificially drawing, by means of wells on his property, unnatu ral quantities of such waters from the common source of supply, and wasting them to the injury or impairment of the rights of other proprietors. The court said: "The mineral waters and carbonic acid gas exist in a commingled state in the underlying rock and neither can be drawn out without the other. They are of value in their commingled form, and also when separated, but the greater demand is for the gas alone. Influenced by this demand, some surface owners having wells bored or drilled into the rock engage in extensive pumping operations for the purpose of collecting gas and vending it as a separate commodity. Usually where this is done an undue proportion of the commingled water and gas is taken from the common supply and a large, if not the larger, proportion of the waters from which the gas is collected is permitted to run to waste. Thus, these pumping operations generally result in an unreasonable and wasteful depletion of the common supply and in a corresponding injury to others equally entitled to resort to it. It is to correct this evil that the statute was adopted, and the remedy which it applies is an enforced discontinuance of the excessive and wasteful features of the pumping. It does not take from any surface owner the right to tap the underlying rock and to draw from the common supply, but, consistently with the continued existence of that right, so regulates its exercise as reasonably to conserve the interests of all who possess it. That the state consistently with due process of law may do this is a necessary conclusion from the decision in the case cited. But were the question | sideration the same statute involved in an open one we still would solve it in the same way." And see also People v. New York Carbonic Acid Gas Co. (1909) 196 N. Y. 421, 90 N. E. 441, which had under con NORTH DAKOTA SUPREME COURT. MICHAEL MURPHY, Receiver of Medina State Bank, Appt., V. L. B. HANNA et al., Respts. (37 N. D. 156, 164 N. W. 32.) Contract -to loan money - mutuality. 1. In an action to recover damages for breach of an alleged executory contract to loan money, where the complaint alleges no acts from which it can reasonably be inferred that the borrower had agreed to borrow any sum of money, or, if borrowed, to retain the same for any period of time, pay ing interest therefor, the complaint states no cause of action for breach of a bilateral executory contract. For other cases, see Contracts, I. d, 2, tract. in action on unilateral con 2. A complaint which alleges the understanding with which, and the circumstances in which, parties were negotiating for a loan of money from one to the other, and where it further alleges acts done in pursuance of such understanding, which acts involve a detriment sustained by the one desiring to borrow money, which detriment is incurred in reliance upon the promise of the other to loan, the complaint states a cause of action for a breach of a unilateral contract obligation. For other cases, see Pleading, II. h, in Dig. 1-52 N. S. Same refusal to lend money. 3. Where a complaint alleges that it was agreed between plaintiff and defendants that plaintiff should turn over to the defendants bills receivable approved by them, which they were to hold as security for a loan of money to plaintiff, to enable plaintiff to continue its business, thus preventing the sacrifice of its assets and the loss of its good will, and that in pursuance of this agreement plaintiff turned over to the defendants its bills receivable, selected by them, of the alleged value of about $20,000, which bills receivable are alleged to have constituted the assets of the plaintiff that could be Headnotes by BIRDZELL, J. Note. A discussion of the damages recoverable for breach of contract to lend money appears in the notes to Lowe v. Turpie, 37 L.R.A. 233; Bixby-Theison Lumber Co. v. Evans, 29 L.R.A. (N.S.) 194; and Farabee-Treadwell Co. v. Union & P. Bank & T. Co. L.R.A.1916F, 506. 1 A PPEAL by plaintiff from an order of the District Court for Cass County sustaining demurrers to a complaint filed to recover damages for alleged breach of a contract to loan money. Reversed. The facts are stated in the opinion. Messrs. Purcell, Divet, & Perkins, J. W. Carr, Engerud, Holt, & Frame, and Oscar J. Seiler, for appellant: The contract is presumed to be in writing. 9 Enc. Pl. & Pr. 700, 701; Jenkinson v. Vermillion, 3 S. D. 238, 52 N. W. 1066; Hanson v. Svarverud, 18 N. D. 550, 120 N. W. 550. The contract is not ultra vires. Bixby-Theirson Lumber Co. v. Evans, 167 Ala. 431, 29 L.R.A. (N.S.) 194, 140 Am. St. Rep. 47, 52 So. 843; Weber v. Lewis, 19 N. D. 473, 34 L.R.A. (N.S.) 364, 126 N. W. 105; Clark, Corp. 175; Illinois Trust & Sav. Bank v. Arkansas, 34 L.R.A. 518, 22 C. C. A. 171, 40 U. S. App. 257, 76 Fed. 271; Illinois Trust & Sav. Bank v. Pacific R. Co. 117 Cal. 332, 49 Pac. 197; Philadelphia & S. R. Co. v. Lewis, 33 Pa. 33, 75 Am. Dec. 574; Pittsburgh, C. & St. L. R. Co. v. Keokuk & H. Bridge Co. 131 U. S. 371, 33 L. ed. 157, 9 Sup. Ct. Rep. 770. A contract to furnish what may be needed or required or necessary is sufficiently definite, because it is capable of being made definite at the time of performance. Page, Contr. p. 50, § 28; Wells v. Alex andre, 130 N. Y. 642, 15 L.R.A. 218, 29 N. E. 142; Hickey v. O'Brien, 123 Mich. 611, 49 L.R.A. 594, 81 Am. St. Rep. 227, 82 N. W. 241; E. G. Dailey Co. v. Clark Can Co. 128 Mich. 591, 87 N. W. 761; Minnesota Lumber Co. v. Whitebreast Coal Co. 160 Ill. 85, 31 L.R.A. 529, 43 N. E. 774; Sutliff v. Seidenberg, 132 Cal. 63, 64 Pac. 131, 469; Elliott Contr. § 180; Indianapolis Cabinet Co. v. Herrman, 7 Ind. App. 462, 34 N. E. 579; Holland v. Rea, 48 Mich. 218, 12 N. W. 167; Parker v. Pettit, 43 N. J. L. 512; Patrick v. Kirkland, 53 Fla. 768, 125 Am. St. Rep. 1096, 43 So. 969, 12 Ann. Cas. 540. Consequential damages may be recovered because of the parties contracting with special reference thereto, when they could not be recovered but for that fact. Hadley v. Baxendale, 9 Exch. 341, 156 Eng. Reprint, 145, 23 L. J. Exch. N. S. 179, 2 C. L. R. 517, 18 Jur. 358, 2 Week. Rep. 302, 5 Eng. Rul. Cas. 502; Sedgw. Damages, pp. 126, 203; Messmore v. New York Shot & Lead Co. 40 N. Y. 427; Central Trust Co. v. Clark, 34 C. C. A. 354, 92 Fed. 293; Townsend v. Nickerson, 117 Mass. 501; Wakeman v. Wheeler & W. Mfg. Co. 101 N. Y. 205, 54 Am. Rep. 676, 4 N. E. 264; Starbird v. Barrons, 38 N. Y. 230; Howard v. Stillwell & B. Mfg. Co. 139 U. S. 199, 35 L. ed. 147, 11 Sup. Ct. Rep. 503; Boutin v. Rudd, 27 C. C. A. 526, 53 U. S. App. 525, 82 Fed. 685; Wolcott v. Mount, 38 N. J. L. 496, 20 Am. Rep. 425; Bixby-Theison Lumber Co. v. Evans, 26 L.R.A. (N.S.) 194, and note, 167 Ala. 431, 140 Am. St. Rep. 47, 52 So. 843; Hung Lowe v. Turpie, 37 L.R.A. 233 and note, 147 Ind. 652, 44 N. E. 25, 47 N. E. 150. Messrs. Watson & Young and E. T. Conmy, for respondents Weiser and Bank: The contract or agreement relied upon here is uncertain and indefinite and therefore void. 6 R. C. L. p. 647; Freeman v. Morris, 131 Wis. 216, 120 Am. St. Rep. 1038, 109 N. W. 983, 11 Ann. Cas. 481; Woods v. Evans, 113 Ill. 186, 55 Am. Rep. 409; United Press v. New York Press Co. 164 N. Y. 406, 58 N. E. 527, 53 L.R.A. 298, note; Parsons v. Trask, 7 Gray, 473, 66 Am. Dec. 502; East Line & R. River R. Co. v. Scott, 72 Tex. 70, 13 Am. St. Rep. 758, 10 S. W. 99; Faulkner v. Des Moines Drug Co. 117 Iowa, 120, 90 N. W. 585; Spokane Canal Co. v. Coffman, 61 Wash. 357, 112 Pac. 383; Missouri, K. & T. R. Co. v. Smith, 98 Tex. 47, 66 L.R.A. 741, 107 Am. St. Rep. 607, 81 S. W. 22, 4 Ann. Cas. 644; Briggs v. Morris, 244 Pa. 139, 90 Atl. 532; Dorsey v. Packwood, 12 How. 126, 13 L. ed. 921; Smith v. Dotterweich, 132 App. Div. 489, 116 N. Y. Supp. 896; Arundel Realty Co. v. Maryland Electric R. Co. 116 Md. 257, 38 L.R.A. (N.S.) 157, 81 Atl. 787; Joliet Bottling Co. v. Joliet Citizens' Brewing Co. 254 Ill. 215, 98 N. E. 263; Abeel v. Radcliff, 13 Johns. 297, 7 Am. Dec. 377; Great Northern R. Co. v. Sheyenne Teleph. Co. 27 N. D. 256, 145 N. W. 1062; Swindell v. First Nat. Bank, 121 Ga. 714, 49 S. E. 673; Carr v. Louisville & N. R. Co. 141 Ga. 219, 80 S. E. 716; Dayton v. Stone, 111 Mich. 196, 69 N. W. 515; Higbie v. Rust, 211 Ill. 333, 103 Am. St. Rep. 204, 71 N. E. 1010; Ingram-Day Lumber Co. v. Rodgers, 105 Miss. 244, 48 L.R.A. (N.S.) 435, 62 So. 230, Ann. Cas. 1916E, 174; Davie v. Lumberman's Min. Co. 93 Mich. 491, 24 L.R.A. 357, 53 N. W. 625; Howie v. Kasnowitz, 83 App. Div. 295, 82 N. Y. Supp. 42; A. Santaella & Co. v. Otto F. Lange Co. 84 C. C. A. 145, 155 Fed. 719; Prior v. Hilton & D. Lumber Co. 141 Ga. 117, 80 S. E. 559; Elks v. North State Ins. Co. 159 N. C. 619, 75 S. E. 808; Belmont v. McAllister, 116 Va. 285, 81 S. E. 81; Gaines v. Vandecar, 59 Or. 187, 115 Pac. 721, 1122; Gould v. Gunn, 161 Iowa, 155, 140 N. W. 380. The contract relied upon as a basis of liability is ultra vires and void. Bank of United States v. Dandridge, 12 Wheat. 64, 68, 6 L. ed. 552, 554; First Nat. Bank v. Converse, 200 U. S. 425, 50 L. ed. | other creditors, and there was grave danger 537, 26 Sup. Ct. Rep. 306; First Nat. Bank that it would be compelled to suspend payv. Hawkins, 174 U. S. 365, 43 L. ed. 1007, ment, and go into liquidation, and have its 19 Sup. Ct. Rep. 739; California Nat. Bank affairs closed up by a receiver. v. Kennedy, 167 U. S. 362, 42 L. ed. 198, 17 Sup. Ct. Rep. 831; Farmers' & M. Bank v. Butchers & D. Bank, 16 N. Y. 125, 69 Am. Dec. 678; Morford v. Farmers' Bank, 26 Barb. 568; Thomp. Corp. 5721; Bowen v. Needles Nat. Bank, 36 C. C. A. 553, 94 Fed. | 927; Merchants Bank v. Baird, 17 L.R.A. (N.S.) 526, 90 C. C. A. 338, 160 Fed. 642; Citizens Cent. Nat. Bank v. Appleton, 216 U. S. 196, 54 L. ed. 443, 30 Sup. Ct. Rep. 364; De la Vergne Refrigerating Mach. Co. v. German Sav. Inst. 175 U. S. 40, 44 L. ed. 65, 20 Sup. Ct. Rep. 20. The contract or agreement relied upon as being a basis for plaintiff's cause of action not being in writing, the complaint must fall. 6 Enc. Pl. & Pr. 266; Millard v. Steers, 9 App. Div. 419, 41 N. Y. Supp. 221, 158 N. Y. 741, 53 N. E. 1128; White v. Rintoul, 108 N. Y. 222, 15 N. E. 318; Walther v. Merrell, 6 Mo. App. 370; Woodward v. Gould, 27 Fed. 182; Lamb v. Donovan, 19 Ind. 40; Walker v. Larkin, 127 Ind. 100, 26 N. E. 684; Lombard v. Citizens Bank, 107 La. 183, 31 So. 654; Bell v. Bitner, 33 Ind. App. 6, 70 N. E. 549; Blish Mill. Co. v. Detherage, 155 Ky. 319, 159 S. W. 816; Wabash R. Co. v. Grate, 53 Ind. App. 583, 102 N. E. 155. "That the assets of said bank were actually worth and of the value of $85,000, to be used, realized upon, collected, and handled in the continuation of the business of said bank in the due and ordinary course of its banking business, and said bank was possessed of a business good will of large value; but a large part of such assets were in the form of second and third securities upon property, securing the obligations of persons against whom immediate collection could not be enforced, and the collection of which would require a considerable period of time, extensions, renewals, and in many cases the advancement of money, by said bank, for the protection of said securities, and, as a whole, the character of said assets were such that, unless held, handled, used, and collected in the regular and continued conduct of the banking business of said bank, or if attempted to be handled, collected, or used by a receiver or assignee, or otherwise than in the continuation of the regular business of said bank, they would become immediately greatly depreciated in value, and in many cases practically worthless. "That at said time the defendants and financial concerns in which they were in. terested were creditors of said bank to the Messrs. Lawrence & Murphy for re- amount of several thousand dollars and spondent Hanna. holders of its stock as collateral security. and it was the mutual desire and to the Birdzell, J., delivered the opinion of the mutual interest of said bank and the de court: This is an appeal from an order of the district court of Cass county, sustaining demurrers of the various defendants to a complaint. Omitting the formal allegations, the complaint is as follows: "That on or about the 21st day of June, 1915, the said district court duly authorized plaintiff, as such receiver, to bring this action. That on or about the 10th day of January, 1914, said bank was a going concern, but indebted, in large amounts, to divers persons; and its ability to meet and discharge its obligations to its depositors and other creditors was questioned by the public, and grave danger existed that the depositors and other creditors would institute a run upon said bank, and demand payment of deposits in such unusual amounts that it would be unable to realize upon its assets expeditiously enough to enable it to meet such calls; and in truth and in fact the assets of said bank were of such character they could not be realized upon in sufficient amounts to meet calls being made and about to be made by its depositors and fendants that the bank continue as a going concern and preserve its good will until its assets could be realized upon to their full value in the regular course of its banking business; and it was then endeavoring to convert into cash all its assets immediately available for that purpose, for the express and only purpose of meeting the demands of its depositors and immediately maturing obligations, which endeavors and purpose were then and there communicated by it to defendants, who had full and complete knowledge thereof. "That it was then and there discussed, between said bank and said defendants, and fully understood by all thereof, that to avoid an immediate suspension of business by said bank its assets must be converted into cash as expeditiously as possible to meet the claims of depositors and immediately maturing demands, and that a failure to so realize upon and convert such assets as were available into cash would inevitably lead to an early suspension of business by said bank, which would in turn lead to an immediate and large depreciation in the |