Bristol & Sweet Co. v. Skapple

• Citation: 115 N.W. 841,17 N.D. 271
• Parties: BRISTOL & SWEET CO. v. SKAPPLE et al.
• Decision Date: 19 March 1908
• Court: United States State Supreme Court of North Dakota

17 N.D. 271

115 N.W. 841

BRISTOL & SWEET CO.

v.SKAPPLE et al.

Supreme Court of North Dakota.

March 19, 1908.

Syllabus by the Court.

Action to recover the purchase price of goods sold and delivered to the copartnership of S. & M., at Wales, N. D., of which it is alleged the respondent was a member. By the separate answer and stipulation of respondent, all questions were eliminated, except the single one whether he was a member of such copartnership. Defendant, both by his answer and the stipulation, contended that there were two distinct firms at Wales doing business under said copartnership name, and that he was not a member of the firm with which plaintiff had its dealings. Held that, by thus narrowing the issues, the burden of proof as to the only remaining issue was not shifted from plaintiff to said defendant; hence the trial court's charge as to the burden of proof was correct.

Appellant has the burden of showing that errors committed in rulings sustaining objections to the admissions of testimony were prejudicial. Certain rulings of this character considered, and held not prejudicial.

A witness was asked in substance if defendant did not at a certain interview with plaintiff's collector treat the claim made by such collector as a claim against the firm of which he was a member. Such question did not call for an answer as to a fact, but merely a conclusion; and hence the objection on such ground was properly sustained.

Evidence examined, and held sufficient to support the verdict. Where the trial court has been asked and has refused to disturb the verdict upon the alleged ground that the same is not supported by the evidence, this court will not reverse such decision, except in a clear case of abuse of discretion.

Appeal from District Court, Cavalier County; W. J. Kneeshaw, Judge.

Action by the Bristol & Sweet Company against Louis Skapple and John Montgomery. Verdict for Montgomery; and, from an order denying a new trial, plaintiff appeals. Affirmed.W. A. McIntyre (Turner & Wright, of counsel), for appellant. Dickson & Johnson, for respondent Montgomery.

FISK, J.

Action to recover the purchase price of certain harness sold to the copartnership of Skapple & Montgomery, located at Wales, N. D. The sale is admitted, and also the price; and the sole question on the trial was whether defendant John Montgomery was a member of said firm, and hence liable as a partner. It was the contention of the defense that there were two distinct firms at Wales doing business under the name of Skapple & Montgomery, one of which was engaged in the harness business and the other in the farm machinery business, respondent being a member only of the latter, while Skapple and respondent's son, E. I. Montgomery, composed the members of the former concern. This issue was submitted to a jury, and, a verdict having been returned in respondent's favor, a motion for a new trial was made and denied, and from the order denying the same this appeal was taken. Appellant has set forth seven assignments of error, which will be disposed of in the order presented in the brief.

1. It is contended that the trial court committed error in sustaining defendant's objection to the following question asked the witness Skapple: “Tell the jury what consideration and all considerations you gave John Montgomery for the return of that note.” The objection was that the question called for the conclusion of the witness, and also that it was incompetent, irrelevant, and immaterial. Whether such ruling was proper or not is immaterial. If error, the same is not available to appellant, as there was no offer of proof, and this court cannot assume that the answer would have been favorable to the plaintiff; hence prejudice is not shown. Madson v. Rutten (N. D.) 113 N. W. 872. Furthermore, the record discloses that almost immediately after such ruling was made the witness, in fact, fully answered such question without objection, and on cross-examination of this witness the fact was developed that the entire negotiations respecting this note were had with Eli Montgomery, instead of the respondent, and the effect of such cross-examination was that the witness gave respondent John Montgomery no consideration whatever for the return of said note. This furnishes another reason why such ruling, if error, was not prejudicial.

Assignments 2 and 3 will be considered together. These relate to the rulings in sustaining defendant's objection to the question: “Did John Montgomery, at this time, treat the claim made by the harness man [plaintiff's collector] as a claim against the firm of Skapple & Montgomery?” and in striking out the witness' answer, “Yes,” to said question. Also in sustaining defendant's objection to the following question: “Did John Montgomery in any manner make any denial that he was liable on the bill?” These assignments are wholly...