Kraft v. Martell

• Decision Date: 13 April 1929
• Docket Number: No. 5626.,5626.
• Citation: 58 N.D. 58,225 N.W. 79
• Parties: KRAFT v. MARTELL.
• Court: North Dakota Supreme Court

58 N.D. 58

225 N.W. 79

KRAFT

v.MARTELL.

No. 5626.

Supreme Court of North Dakota.

April 13, 1929.

Syllabus by the Court.

Statements made by persons directly to a defendant, and his answers thereto, amounting to admissions against his interest are admissible.

Where there is a direct conflict in the testimony on an issue of fact, a judgment on the verdict of the jury will be affirmed.

Appeal from District Court, Williams County; Geo. H. Moellring, Judge.

Action by Ane Marie Kraft against Charles Franklin Martell. Judgment for plaintiff, and defendant appeals. Affirmed.Wm. G. Owens, of Williston, for appellant.

John J. Murphy, of Williston (Wm. Langer, of Bismarck, on oral argument), for respondent.

BURKE, C. J.

This is an action to recover the sum of $550, the contract price of cattle and horses, alleged in the complaint to have been sold to the defendant by the plaintiff. The defendant answered by general denial. At the close of all the testimony, the defendant moved for a directed verdict, which was denied, and the verdict was returned for the plaintiff. A motion was then made by the defendant to set aside the judgment and for a dismissal of the action on the ground that the verdict was contrary to the evidence and plaintiff had failed to prove her case by competent testimony, which was also denied, and from the judgment the defendant appeals.

The horses and cattle in question belonged to the plaintiff, and she testified that, a few days before the execution of the bill of sale, the defendant was at her place; that she told him she wanted to sell the cattle and horses and invest the proceeds in land which had timber and water on it; that the defendant agreed to find her such land, and she agreed to sell to him ten head of cattle and two horses, and to give him one horse as a commission for finding and procuring for her the kind of land she wanted, and that he was to pay the $550 either to the plaintiff or to the party from whom the land was purchased; that at said time they went out and looked at the cattle and horses; that he was satisfied with the price, and agreed to pay $550 for the ten head of cattle and two horses, and to accept the other horse for his services in procuring the land; that a few days later the defendant came back and took the plaintiff and her husband to Fairview; that they went into Nohle's Bank, and then they went out to look at some land which had timber and water and was in the irrigated district; that plaintiff agreed to buy the land of Nohle, went back to the bank, the bill of sale was made out for the cattle and horses, including the horse which the plaintiff claims the defendant was to have for his service in finding the land; that, when they had paid Nohle $780 on the land, for some reason Nohle could not give them title, and offered them a 40-acre tract on the hills, not in the irrigated district, and with no timber or water, which they accepted at the agreed price of $780. A few days later the plaintiff and her husband met the defendant on the road, plaintiff asked him for the money for the cattle, and he muttered something which she could not understand and drove away.

This testimony is largely corroborated by the plaintiff's husband, who further testified that: “Later at Nohle's place and in the presence of Nohle, I asked Mr. Martell whether he was going to pay the $550.00 to my wife for her cattle and horses, or whether he would pay it to Andrew Nohle? He said, ‘No, I want to keep this money for making the deal.’ Mr. Nohle said, ‘Martell has never paid me a dollar’ and Martell said, ‘I kept the money for making the deal.”’

In October, 1923, the witness had another conversation with Nohle and Mr. Martell, in which he says, “I said have you paid this money to Andrew? He said, ‘No.’ ‘Nohle said that Martell had not paid him and Martell said he wouldn't pay.”’

The defendant testified that he never had any deal with the plaintiff; that he was not at her place, and did not go out to look at any cattle or horses; that he bought the cattle and horses from Andrew Nohle; that he did have a talk with Mr. Kraft, who said he wanted a piece of land and, “I said I would try and get it for him.”

It is apparent that the...