Birdzell, C. J.-
This is an action to recover the cost of certain materials used in constructing improvements upon land owned' by the 'defendant. The plaintiff was lessee under a lease giving him the privilege to erect or construct buildings and fences at his own cost, with an option to sell the improvements to the lessor at the expiration of the lease at the cost of the materials or to remove the same. The plaintiff had judgment below for $1,138.60, with interest. The defendant moved for a judgment non obstante, and the motion was denied. The appeal is from the judgment and from the order denying the defendant’s motion.
Baker, the defendant, owned a section of land in Grant county which he leased to Gunther, the plaintiff, on October 31, 19x7, for a period of three years. The lease contained the following stipulation:
“The first party has the privilege to erect 'or construct buildings or fences, this to be done at his own cost. Should he desire to sell these improvements made to second party at expiration of lease, these must be disposed of to second party at cost of material, or remove same at expiration of lease.”
In June, 1920, Baker traded or sold the land to' one Burghart, of Willmar, Minn., reserving the 1920 crop. Burghart later came to North Dakota, and, after some negotiations with the plaintiff, Gunther, a contract for deed was executed by them,-dated August 3, 1920, under which Gunther remained in possession as purchaser of the land.. At the time Burghart bought the land from the defendant he knew of the existence of the lease to Gunther. But the latter, the plaintiff in this action, claims that the land was sold to Burghart with the improvements upon it and in circumstances which entitled Burghart, as against Baker, to retain them. It is also claimed that the deal between Burghart and the plaintiff was consummated on the basis of the former’s ownership of both the land and the improvements, and of the continued existence of any personal claim the plaintiff might have against the defendant, arising oik of the stipulation in the lease concerning the improvements.
Some time after Gunther entered into the contract of purchase Baker wrom to the First State Bank of New Leipzig, requesting it to look after his crop interests. In reply to this request the bank suggested that it would probably be necessary for Baker to come out and settle up with Gunther, as he claimed that the value of the improvements which he had [1073]*1073placed upon the land was to be taken out’of the crop. It was exolained that Burghart claimed he had bought all of the improvements along with the land, and Baker was advised that Gunther was standing on his contract. It was further suggested that if it was impossible for Baker to ccme out the bank would obtain an inventory of the items for which Gunther was charging him under the contract that he might be able to check them up and close the matter through the mail. The bank funher intimated that it had an option to buy the property, and it was therefore interested in keeping the improvements on the place. Following this there was considerable correspondence between the bank and Baker relating to the settlement, in the course of which Baker was given an itemized statement of Gunther’s claims, amounting to $1,138.60, none of which was disputed, but Baker claimed that Burghart knew what buildings and improvements he (Baker) was to buy, and that if he (Burghart) wanted any other improvements which Gunther might have placed on the land he would have to deal with him for them. Baker admitted that he was to buy the house at $539; certain fences at $134.50, and the windmill at $110, aggregating $783.50. There were further differences arising out of the disposition of the crop, certain hail insurance money, taxes, and pasture land rental, also relating to the manner of payment, which seemed to prevent settlement on the basis of Baker’s proposition, although Gunther had agreed to settle for the amount stated in Baker’s proposition ($783.50). While the correspondence was being conducted, Baker was not aware of the fact that Gunther had purchased the land from Burghart. When he discovered this fact, he refused to pay on the ground that he was not obliged to pay Gunther for improvements of which he was deriving the permanent benefit. Ultimately, in January of the following year, Gunther withdrew his offer of settlement, and soon there-a fter this action was brought. In the original complaint the plaintiff sued to recover only the sum which the defendant had in the correspondence, agreed to pay, namely $783.50. But an amended complaint was filed in which it is alleged in substance that by the sale to Burghart the defendant had elected to purchase the improvements under the provisions of the lease and had become obligated to pay for them at their cost, $t,139.40.
The appellant argues that, inasmuch as Burghart knew when he purchased the premises that Gunther was in possession under a lease, he must be held likewise to have known the latter’s rights with respect to the improvements. From this it would follow that, as against Burghart, [1074]*1074Gunther could have removed the improvements; and consequently it is contended the latter was not justified in purchasing them from Burghart by including in the consideration a sum representing their value.
It is certain, however, that Gunther bought all the interest that Burg-hart had purchased from Baker, and Burghart testified that he had bought everything there was upon the land; that he told Baker there was any agreement between him and Gunther about the buildings, he would have to pay Gunther, and that in dealing with the latter he had said, if there was any agreement between him and Baker concerning the improvements, that was their business; that he was not concerned with any agreement between Baker and his tenant concerning his improvements; that Baker had sold him all of the property, reserving only the crops. In addition to this, the defendant, in his letter to the bank dated Ottober 23d, said:
“And further if you will get an inventory of the actual cost of the material, placed on the land and send same to me, I will check it and advise you later what I will do. I supposed Gunther would be governed by the contract, and he should know that I had no intention of trying to beat him out of his property. The contract is as binding on my part as on his. I will most likely be up there later in the season, and until then you get the threshers’ report on the grain threshed, and advise Gunther that he will get a full settlement with me before the first of the new year.”
Later, upon the inventory of the material being furnished, and under date of December 10th, the defendant wrote:
“And now I will tell you what I will do with Mr. Gunther. I will take over the house with addition and finishing lumber, as mentioned in yours of November 5th:
Whole building as it stands at.$539.00
The 14 spools barbed wire and 290 posts at.134.50
And the windmill at. 110.00
$783-50
“The balance of the fixings, if Burghart wants hem, the can deal for. Burghart fully knew what buildings were mine, and that I was to buy the house, barbed wire fence and the windmill of Gunther and leave them on the place. I told Burghart what building there was on the place that I knew of, and if there was more they belonged to the renter.”
[1075]
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Birdzell, C. J.-
This is an action to recover the cost of certain materials used in constructing improvements upon land owned' by the 'defendant. The plaintiff was lessee under a lease giving him the privilege to erect or construct buildings and fences at his own cost, with an option to sell the improvements to the lessor at the expiration of the lease at the cost of the materials or to remove the same. The plaintiff had judgment below for $1,138.60, with interest. The defendant moved for a judgment non obstante, and the motion was denied. The appeal is from the judgment and from the order denying the defendant’s motion.
Baker, the defendant, owned a section of land in Grant county which he leased to Gunther, the plaintiff, on October 31, 19x7, for a period of three years. The lease contained the following stipulation:
“The first party has the privilege to erect 'or construct buildings or fences, this to be done at his own cost. Should he desire to sell these improvements made to second party at expiration of lease, these must be disposed of to second party at cost of material, or remove same at expiration of lease.”
In June, 1920, Baker traded or sold the land to' one Burghart, of Willmar, Minn., reserving the 1920 crop. Burghart later came to North Dakota, and, after some negotiations with the plaintiff, Gunther, a contract for deed was executed by them,-dated August 3, 1920, under which Gunther remained in possession as purchaser of the land.. At the time Burghart bought the land from the defendant he knew of the existence of the lease to Gunther. But the latter, the plaintiff in this action, claims that the land was sold to Burghart with the improvements upon it and in circumstances which entitled Burghart, as against Baker, to retain them. It is also claimed that the deal between Burghart and the plaintiff was consummated on the basis of the former’s ownership of both the land and the improvements, and of the continued existence of any personal claim the plaintiff might have against the defendant, arising oik of the stipulation in the lease concerning the improvements.
Some time after Gunther entered into the contract of purchase Baker wrom to the First State Bank of New Leipzig, requesting it to look after his crop interests. In reply to this request the bank suggested that it would probably be necessary for Baker to come out and settle up with Gunther, as he claimed that the value of the improvements which he had [1073]*1073placed upon the land was to be taken out’of the crop. It was exolained that Burghart claimed he had bought all of the improvements along with the land, and Baker was advised that Gunther was standing on his contract. It was further suggested that if it was impossible for Baker to ccme out the bank would obtain an inventory of the items for which Gunther was charging him under the contract that he might be able to check them up and close the matter through the mail. The bank funher intimated that it had an option to buy the property, and it was therefore interested in keeping the improvements on the place. Following this there was considerable correspondence between the bank and Baker relating to the settlement, in the course of which Baker was given an itemized statement of Gunther’s claims, amounting to $1,138.60, none of which was disputed, but Baker claimed that Burghart knew what buildings and improvements he (Baker) was to buy, and that if he (Burghart) wanted any other improvements which Gunther might have placed on the land he would have to deal with him for them. Baker admitted that he was to buy the house at $539; certain fences at $134.50, and the windmill at $110, aggregating $783.50. There were further differences arising out of the disposition of the crop, certain hail insurance money, taxes, and pasture land rental, also relating to the manner of payment, which seemed to prevent settlement on the basis of Baker’s proposition, although Gunther had agreed to settle for the amount stated in Baker’s proposition ($783.50). While the correspondence was being conducted, Baker was not aware of the fact that Gunther had purchased the land from Burghart. When he discovered this fact, he refused to pay on the ground that he was not obliged to pay Gunther for improvements of which he was deriving the permanent benefit. Ultimately, in January of the following year, Gunther withdrew his offer of settlement, and soon there-a fter this action was brought. In the original complaint the plaintiff sued to recover only the sum which the defendant had in the correspondence, agreed to pay, namely $783.50. But an amended complaint was filed in which it is alleged in substance that by the sale to Burghart the defendant had elected to purchase the improvements under the provisions of the lease and had become obligated to pay for them at their cost, $t,139.40.
The appellant argues that, inasmuch as Burghart knew when he purchased the premises that Gunther was in possession under a lease, he must be held likewise to have known the latter’s rights with respect to the improvements. From this it would follow that, as against Burghart, [1074]*1074Gunther could have removed the improvements; and consequently it is contended the latter was not justified in purchasing them from Burghart by including in the consideration a sum representing their value.
It is certain, however, that Gunther bought all the interest that Burg-hart had purchased from Baker, and Burghart testified that he had bought everything there was upon the land; that he told Baker there was any agreement between him and Gunther about the buildings, he would have to pay Gunther, and that in dealing with the latter he had said, if there was any agreement between him and Baker concerning the improvements, that was their business; that he was not concerned with any agreement between Baker and his tenant concerning his improvements; that Baker had sold him all of the property, reserving only the crops. In addition to this, the defendant, in his letter to the bank dated Ottober 23d, said:
“And further if you will get an inventory of the actual cost of the material, placed on the land and send same to me, I will check it and advise you later what I will do. I supposed Gunther would be governed by the contract, and he should know that I had no intention of trying to beat him out of his property. The contract is as binding on my part as on his. I will most likely be up there later in the season, and until then you get the threshers’ report on the grain threshed, and advise Gunther that he will get a full settlement with me before the first of the new year.”
Later, upon the inventory of the material being furnished, and under date of December 10th, the defendant wrote:
“And now I will tell you what I will do with Mr. Gunther. I will take over the house with addition and finishing lumber, as mentioned in yours of November 5th:
Whole building as it stands at.$539.00
The 14 spools barbed wire and 290 posts at.134.50
And the windmill at. 110.00
$783-50
“The balance of the fixings, if Burghart wants hem, the can deal for. Burghart fully knew what buildings were mine, and that I was to buy the house, barbed wire fence and the windmill of Gunther and leave them on the place. I told Burghart what building there was on the place that I knew of, and if there was more they belonged to the renter.”
[1075]*1075There is no dispute in the evidence that Gunther purchased all of the interest of Burghart, and, in the light of the defendant’s admission, there could be no question as to the plaintiff’s right to recover $783.50. The sole controversy, therefore, relates to the difference between that sum and the amount of the verdict, $1,138.60.
The evidence presents a question of fact for the jury as to whether the version of Burghart or of Baker represents the true contract between them. The plaintiff in this case has every right against Baker that Burg-hart would have had had he remained the owner of the land and had Gunther exercised his option to remove the improvements at the termination of the lease. It is therefore immaterial that the defendant did not know of Gunther’s purchase.
It is contended that the court erred in admitting the correspondence between the defendant and the banker, who acted as his agent, as against the objection that it was privileged and that it was offered to prove a compromise. Clearly the relation between the defendant and his agent is clothed with no privilege which precludes a communication of the defendant to the agent from being used as an admission against interest. The record shows that the trial court properly restricted the correspondence to its value as containing admissions against interest. As will be noted from the foregoing statement and quotations, it did contain specific admissions with reference to the contract between the defendant and Burghart, from whom the plaintiff derived his rights. It is elementary that specific admissions which may accompany an offer of compromise are not excluded because of the circumstances in which they are made. 2 Jones, Commentaries on Evidence, § 291 (293).
The appellant complains of the instructions to the jury. Upon a careful consideration of the objections to the charge it does appear that errors were committed which require a reversal of the judgment unless the plaintiff will consent to a remission of all in excess of $783.50, plus 6 per cent, interest from the date of the sale to Burghart. It is unnecessary to quote the charge at length. Suffice it to say that it does not properly present to the jury the issues of fact, accompanied by a statement of the controlling legal principles applicable. The instructions submit as the principal question for the jury to determine whether or not the defendant had agreed in the lease to purchase the buildings of the plaintiff. This i? not a question of fact, but a question of law. The provisions of the lease are not in dispute. It charged upon the law of conversion and on the question of market value, though the plaintiff in his complaint had [1076]*1076expressly waived the tort, if any was committed, and 'there was no evidence of market value. It did not charge clearly, if at all, upon the principal question of fact, which is as to whether or not the defendant, in selling the land to Burghart, sold it with all the plaintiff’s improvements or with only part of them. Upon this question the evidence is conflicting. We are of the opinion that, under the charge given, the jury could not have had a clear conception of the issues which they were to decide. Inasmuch as it is our opinion, further, that, under the evidence, the plainiiff would have been entitled to an instructed verdict for $783.50, plus 6 per cent, interest from the date of the sale to Burghart, the order will be, judgment reversed, and a new trial granted, with costs to abide the event, unless the plaintiff shall file a rehiittitur of all in excess of $783.50, plus interest and costs in the lower court. As so modified, the judgment will be affirmed. Appellant will recover costs on this appeal.
Robinson, ChRistxaNson, and Grace, JJ., concur.