Hogen v. Klabo
| Decision Date | 02 August 1904 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Steele county; Pollock, J.
Action by J. J. Hogen against Tosten T. Klabo. Judgment for defendant, and plaintiff appeals.
Affirmed.
Order denying a new trial affirmed.
Asa J Styles and Theodore Koffel, for appellant.
Indebtedness of stranger not material. 7 Am. & Eng. Enc. Law (2d Ed.) 78.
Self-serving statements are inadmissable. Boston & A. R. Co. v O'Reilly, 158 U.S. 334, 15 S.Ct. 830; Smith v Tosini et ux. 48 N.W. 299; Reagan et al. v McKibben, 76 N.W. 943; Cain v. Cain, 21 A. 309; Smith v. Eyre, 28 A. 1005; Pinney v. Jones, 30 A. 762; Osmun v. Winters, 35 P. 250; 9 Am. & Eng. Enc. Law, (2d Ed.) 5.
The case is not within the rule that courts will not review conflicting evidence. There is no conflicting or inconsistent evidence, and the rule in Flath v. Casselman, 10 N.D. 419, 87 N.W. 988, does not apply. There is no substantial conflict, and the correctness of the verdict is a question of law. Mitchell v. Reed, 26 P. 342.
F. W. Ames and George Murray, for respondent.
Respondent could only meet appellant's proof--by himself and Nelson--that Hogen was owner of the machine, by circumstantial evidence. If circumstantial evidence forms a link in the chain of proof, or tends reasonably to establish the fact in controversy by strengthening the probabilities on one side or weakening those on the other, it should be received. Gandy v. Bissell's Estate, 90 N.W. 883, Black v. Walker, 7 N.D. 414, 75 N.W. 787.
The court will not weigh conflicting evidence, nor modify an order allowing or denying a new trial where there is a substantial conflict in the evidence. Flath v. Casselman, 10 N.D. 419, 87 N.W. 988; 14 Enc. Pl. & Pr. 769; Lighthouse v. Chicago, M. & St. P. Ry. Co., 54 N.W. 320.
The admission of incompetent evidence upon a conceded fact in the case, if error, is without prejudice. Gale et al. v. Shillock et al., 29 N.W. 661; Ostrand v. Porter, 25 N.W. 731; Stewart v. Gregory, Carter & Co., 9 N.D. 504, 84 N.W. 553. The admission of improper evidence, where the testimony has been received elsewhere without objection, is harmless. Ashley v. Sioux City, 93 N.W. 303.
Objections not sufficiently stating the grounds thereof cannot place the court in error. Kolka v. Jones, 6 N.D. 461, 71 N.W. 558.
Where an objection is overruled, and the question is asked in cross-examination by the same party, any error in overruling the objection is cured. Ashley v. Sioux City, supra; Little Dorrit Gold Mining Co. v. Arapahoe Gold Min. Co., 71 P. 389.
Plaintiff sued to recover a balance which he claimed to be due him for threshing defendant's crops in 1901. In his complaint plaintiff alleged that he made a contract with and was employed by defendant to thresh defendant's crops for 1901; that he threshed the crops pursuant to the contract; and that there was a balance due him and unpaid upon said contract of $ 365.37, for which he asks judgment. The answer is a general denial. A verdict was returned for defendant. A motion for new trial was denied, and this appeal is from the order denying a new trial.
There is some conflict in the evidence, but the following facts are established without contradiction: In July, 1901, A. L. Nelson represented to defendant that he had purchased a threshing rig for use during the fall. Defendant had a large crop, and he was desirous of securing the job of threshing it because of the economies of operation upon defendant's farm and for the prestige it would give him in securing contracts from neighboring farmers. Nelson was insolvent, and without credit. He owed defendant for the amount of a note upon which defendant had become his surety and subsequently paid, and defendant was at that time surety for him upon another note then past due. After some negotiation, a contract was made by which Nelson agreed to thresh defendant's grain with his machine at a stipulated price per bushel, the gross amount to be discounted $ 100, and defendant claimed (but this is denied by Nelson) that the amount Nelson owed him and the amount of the note upon which he was surety, and which he was to pay, should also be paid by this threshing deal. Subsequently, and in the months of September and October, Nelson came upon defendant's farm with a threshing rig, which he claimed to own, and threshed defendant's crops. On or about the 8th of November, and after the threshing was completed, Nelson requested defendant to pay what was coming under the contract to the plaintiff, Hogen. Defendant paid $ 220.40, claiming this to be the balance due for the threshing after deducting the $ 100 discount, a freight bill upon the rig, advanced by defendant, and the notes he had taken up for Nelson. Hogen then for the first time asserted that the threshing machine belonged to him, and not to Nelson; that Nelson was his hired man or agent, and all that Nelson had done in making the contract and performing it was for plaintiff's benefit; and he demanded payment of the full amount the threshing came to without any deductions excepting the freight bill upon the separator.
Defendant had dealt with Nelson at all times as the principal. If we treat plaintiff as an undisclosed principal seeking to recover upon a contract made by the agent for his benefit, he has no other or further rights in this litigation than Nelson would have had had the action been brought in his name. "It would be wrong and fraudulent for the principal to keep himself concealed, permit his agent to make and perform a contract in his own name, and then, by disclosing himself, reap all the advantages and profits of the contract to the disadvantage of the other who had traded with the agent as the only person interested in the transaction." Paley on Agency, 326; Mechem on Agency, section 773, Violett v. Powell, 52 Am. Dec. 550; Taintor v. Pendergast, 3 Hill 72; Ruiz v. Norton, 4 Cal. 355, 60 Am. Dec. 618; Ilsley v. Merriam, 61 Mass. 242, 7 Cush. 242, 54 Am. Dec. 721; Judson v. Stillwell, 26 How. Pr. 513. This is, in effect, the declaration of our statute. Section 4338, Rev. Codes 1899. Defendant is entitled to the full benefits of every stipulation in the contract upon which plaintiff bases his right of recovery. The denials of the answer put in issue the averment that he had a contract with defendant for threshing, or that he threshed for defendant, or that defendant was indebted to him for the balance claimed, or in any sum or amount. The burden was cast upon plaintiff to prove the contract under which the threshing was done, and that at the time the contract was made and at the time it was performed Nelson, who conducted the business and performed the work, was in fact his agent, and acted as such in the transaction. Defendant tried the case upon the theory that plaintiff's' claims were entirely false, and that Nelson was the real party in interest.
Several assignments of error are predicated upon rulings of the court admitting evidence upon the cross-examination of plaintiff's witness, Nelson, identifying notes which defendant had signed and subsequently paid for him, and questions as to whether, under his contract with defendant, these notes were to be paid in threshing. Nelson was the witness upon whose testimony plaintiff relied to prove the contract upon which his right of recovery, if any, was based. Defendant was entitled to have all the terms of the contract proven, and to call the attention of the witness, by cross-examination, to any terms of it he had inadvertently or designedly omitted in his examination in chief. 3 Enc. Ev. 835, and notes; 8 Enc. Pl. & Pr. 105, and note; Duttera v. Babylon (Md.) 35 A. 64; Wilson v. Wagar, 26 Mich. 452. Defendant claimed that it was a stipulation of this contract with Nelson that he was to pay his indebtedness to defendant by threshing. The verdict of the jury establishes the verity of defendant's claim that this was a part of the contract. It was proper for the defendant, in cross-examination, to have this witness identify the notes which defendant had signed for him, and to enquire whether the contract embraced the payment of defendant for what he had and would be required to expend in retiring them, and to show that in arriving at the balance claimed to be due for the threshing no deduction had been made for these notes. This cross-examination was competent as tending to show that the balance sued for was fictitious, and without legal basis. It was not objectionable as tending to establish new matter, which, under the rules of pleading, should be affirmatively pleaded. Brooke v. Quynn, 13 Md. 379 at 379-391; Granger v. Raybarild, 38 Eng. Ch. 94. Where a defendant sets up a defense not necessarily involved in the denial of plaintiff's case, but consisting of new matter, then the defendant must wait until after his opening before he offers proof of this new matter; but when all the defendant, on cross-examination, wishes to disprove by the plaintiff's witness, is the very case the witness has made, then the rule is different, and the cross-examination is proper. Wendt v. Railway Co., 4 S.D. 476, 57 N.W. 226; Jackson v. Water Co., 14 Cal. 18.
Several rulings of the court are assigned for error in permitting defendant to testify concerning the terms of the contract under which his threshing was done and identifying the Nelson notes, which were paid in threshing under this contract. Appellant insists that this was new matter, constituting a defense or counterclaim, and that evidence of it could not be received under a general denial. This evidence was directly contradictory of the material averments of the complaint, and was consequently competent. The fact that it...
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