It is insisted that the alleged errors relied upon for reversal of this case are not set forth in appellant’s brief in the manner required by subdivision 3 of rule 5 of this court and hence should hot be considered. The main object of this *298and similar rules is to facilitate the dispatch of business. Such rules cannot be invoked to bar a right unless a failure to comply with them is clear. After inspection of the brief we are of opinion that, while it may be somewhat defective, it nevertheless sufficiently calls attention to the errors assigned in the statement on motion for a new trial.

It is apparent from the decision of the court below that the trial judge found against respondent’s contention that the Montana Brewing Company should have paid the sum of $52é. 60 due on the purchase price of the townsite lot with the funds in its hands belonging to Schmitz. If this were not true, the decree would not have directed respondent to pay that sum as a condition precedent to the right to have transferred to it the 1,000 shares of stock. The contract between the Montana Brewing Company and Schmitz et al. bound the latter to procure a title to the townsite lot as soon as possible, and provided expressly that, in the event of a refusal or neglect to procure such title, the Montana Brewing Company might pay whatever balance was due the townsite company, and. deduct from the shares of the capital stock in escrow a sufficient amount of said stock, which, at the cash value of said stock at the time of such payment, would be equal thereto. There is no ambiguity in this last mentioned provision of the contract, and on what theory the lower court ordered the entire 1,000 shares of stock to be transferred to the respondent we are unable to determine. It clearly ignored the contract provision, and in doing so committed error. If, too, the lower court found the value of the stock of the Montana Brewing Company to be one dollar per share on December 11, 1893, it erred in this respect also. The evidence was that prior to said date shares of said stock had been sold at a much greater rate than one dollar per share, and that on December 11, 1893, there was absolutely no market sale for it. It does not follow that, because there is temporarily no sale for property, it is without value; and, under testimony showing such a condition of affairs, a court has no right to find arbitrarily that property so situated is of a certain value.

*299Appellant had a right to repayment of the $524.60 expended in procuring a title to the townsite lot in stock of the value thereof on December 11, 1893. Respondent, as assignee of Schmitz, had no greater interest in the 1,000 shares of the stock in escrow than its assignor. Schmitz had bound himself to procure title to the townsite lot “at the earliest possible date. ’ ’ This he neglected to do. He was not entitled to any notice, nor was his assignee, of the time when it was possible to procure a deed to the lot. The respondent should have ascertained that fact itself as a part of its assignor’s contract obligation. The pleadings do not allege any fraud, nor from the evidence in the record is any fraud disclosed, whereby respondent was prevented from a compliance with the terms of Schmitz’s express engagement to procure a title to the town-site lot at the earliest possible date.

It is suggested in his brief that respondent would be entitled to any dividends paid on the assigned Schmitz stock, or so much thereof as ought to be transferred to it. With this we agree. On such shares of the said 1,000 shares of stock as it may be entitled to after the amount to be deducted by the Montana Brewing Company at the cash value of the stock on December 11, 1893, is ascertained, all dividends received by the Montana Brewing Company should belong to respondent. The record, however, does not disclose that any dividends were ever paid, and we mention, this only for the future guidance of the court below in the adjustment of this controversy, if any dividends were ever paid.

The order denying the motion for a new trial, and the judgment, are reversed, and the cause is remanded for a new trial in accordance with the views herein expressed.

Reversed and Remanded.