Bratton v. Hoerr

• Decision Date: 18 April 1923
• Citation: 193 N.W. 308,49 N.D. 719
• Parties: BRATTON v. HOERR.
• Court: North Dakota Supreme Court

49 N.D. 719

193 N.W. 308

BRATTON

v.HOERR.

Supreme Court of North Dakota.

April 18, 1923.

Syllabus by the Court.

An agent's powers or the fact of his agency cannot be established by his own declarations.

While the rule is that, where a substantial showing amounting to prima facie proof as to the fact of the agency has been made, an agent's acts and admissions may be admissible under proper instructions, evidence examined and held not to warrant the application of that rule in this particular case.

Appeal from District Court, Burleigh County; J. A. Coffey, Judge.

Action by C. F. Bratton against W. G. Hoerr. Verdict for plaintiff, and, from an order granting a motion for judgment notwithstanding the verdict, plaintiff appeals. Reversed, and remanded for new trial.J. N. McCarter and W. L. Smith, both of Bismarck, for appellant.

F. E. McCurdy, of Bismarck, for respondent.

NUESSLE, J.

This action is brought to recover for work and labor done by the plaintiff as a farm laborer for the defendant, between the 5th day of October, 1915, and the 10th day of October, 1919. The defendant denies any employment of the plaintiff, and further denies that he is indebted to the plaintiff on any account whatsoever.

It appears that the defendant owned certain farm lands near McKenzie, Burleigh county, N. D. One Coffin was farming these lands under a lease. In October, 1915, Coffin hired the plaintiff as a farm laborer. Coffin died in 1917. His widow continued in occupation of the lands. The defendant lived in Mankato, Minn. He visited the farm occasionally and knew that the plaintiff was working there. His contention is that the plaintiff was working for the Coffins. Plaintiff contends he was working for defendant. Various sums were paid to the plaintiff on account of his services from time to time, such payments sometimes being made by Coffin in cash or by his personal check, sometimes by Coffin turning over the check of the defendant, and sometimes by the defendant directly to the plaintiff. After Coffin's death, his widow sometimes paid the plaintiff.

The plaintiff contends that Coffin was the agent of the defendant and that he (the plaintiff was hired by Coffin to work for the defendant, and was to be paid by the defendant for such labor as he might perform. The questions in the case, when the matter was presented to the jury, were whether plaintiff was hired by and for defendant, and whether or not Coffin was the agent of the defendant in hiring the plaintiff.

At the close of the plaintiff's case, and again at the close of the whole case, the defendant made a motion for a directed verdict. In accordance with the statute (chapter 133, Laws 1921) these motions were denied. The case was submitted to the jury. A verdict was returned for the plaintiff. Thereafter the defendant moved for judgment notwithstanding the verdict. This motion was granted. From the judgment entered thereafter in favor of the defendant, this appeal is taken.

The appellant's contention is, first, that on the record as made there was sufficient evidence to warrant the jury in making a finding that the employment of the plaintiff was an employment by and for the defendant, and that such contract of employment was entered into with and through Coffin as the agent of the defendant; second, that, even though this is not the case, there was such error during the course of the trial by reason of rulings on questions of evidence as to prejudice the plaintiff, and that in any event he is entitled to a new trial.

After a careful consideration of the record, we are of the opinion that it is not necessary for us to pass upon the question of the sufficiency of the evidence to warrant the verdict; this, on account of prejudicial error during the course of the trial.

It appears that subsequent to the death of Coffin the defendant came to McKenzie and entered into some arrangement with Mrs. Coffin as to her continuing upon the farm. Thereafter a controversy arose between them, and they arranged and had a conference for the purpose of adjusting their differences. It is the contention of the plaintiff that during such conference the question arose as to who was responsible for the obligations owing to the plaintiff on account of his work and labor done during the time that he worked upon the Hoerr farm, that there was more or less talk about this matter between defendant and Mrs. Coffin and others present at the conference, and that the defendant there made certain statements as to his responsibility for, and his undertaking to pay, such...