The plaintiff's complaint was twofold. It first set forth an express, written building-contract. The second "cause of action" was based on the quantum meruit theory and alleged what the plaintiff's services were reasonably worth. In his answer the defendant set up a counterclaim for damages due to the plaintiff's delay and faulty construction. During the trial the court, on motion of the defendant, required the plaintiff to elect on which of the two counts it would stand. The plaintiff elected the express contract. From a judgment in its favor for a fraction of the damages demanded, the plaintiff appealed. Held, that it was not error to compel the plaintiff to elect, after danger of variance was past, in view of the code requirement that the complaint must contain "a plain and concise statement of the facts constituting a cause of action without unnecessary repetition." Redlinger & Hanson Co. v. Parker, (N. D. 1932) 243 N. W. 792.