Larsen v. Friis

• Decision Date: 23 November 1921
• Citation: 48 N.D. 507,185 N.W. 363
• Parties: LARSEN v. FRIIS.
• Court: North Dakota Supreme Court

48 N.D. 507

185 N.W. 363

LARSEN

v.FRIIS.

Supreme Court of North Dakota.

Nov. 23, 1921.

Syllabus by the Court.

Where there is a motion for a new trial, rulings of the trial court which constitute proper grounds for a new trial under the statute must be presented upon such motion; otherwise they will be deemed waived.

Evidence examined, and held, that the trial court did not err in refusing to grant a new trial on the ground of insufficiency of the evidence.

Appeal from Ward County Court; Murray, Judge.

Action by Peter Larsen against Fred W. Friis. From a judgment, and from a denial of a motion for judgment notwithstanding the verdict or for a new trial, defendant appeals. Affirmed.M. R. Keith and John E. Greene, both of Minot, for appellant.

H. H. Cooper, of Kenmare, and Thomas B. Murphy, of Minot, for respondent.

CHRISTIANSON, J.

The complaint in this case is as follows:

“Comes now the above-named plaintiff, and for his cause of action herein complains and alleges:

I. That on or about the 4th day of September, 1919, plaintiff sold and delivered to defendant in granary on premises belonging to defendant near Kenmare, Ward county, N. D., a quantity of Durum wheat for seed purposes, to wit, 54 1/4 bushels of Durum wheat, the same being delivered by plaintiff to defendant at defendant's request.

II. That said wheat was reasonably worth the sum of $2.66 per bushel, or a total of $144.30; that no part of said sum has been paid although demand was made upon defendant prior to the commencement of this action.

Wherefore, plaintiff prays judgment against the defendant for the sum of $144.30, and interest from this date, and for his costs and disbursements incurred herein.”

The defendant interposed a general denial. The case was tried upon the issues so framed. The jury returned a verdict in favor of the plaintiff. The defendant moved in the alternative for judgment notwithstanding the verdict or for a new trial. The motion was denied, and the defendant has appealed to this court from the judgment and from the order denying his motion for judgment non obstante, or for a new trial.

In his brief on this appeal, the appellant says:

“There is but one real point in this appeal. While there are two classes of errors assigned, the real point is the lack of evidence. The first specification of error, as amended, is based on the refusal of the court to grant the defendant's motion to strike out all the evidence on the part of the plaintiff regarding statements made by the witness Hoffine, to the effect that defendant wanted to buy or would buy the 54 bushels of wheat of the plaintiff which were deposited in the defendant's granary. The second specification of error involves the sufficiency of the evidence generally. The motion to strike out the testimony of the plaintiff regarding Hoffein's alleged transaction was made upon the ground that it did not show any agency, or any kind of authority in Hoffein to contract for the purchase of the grain on behalf of the defendant.”

A determination of the specifications so alluded to necessitates a consideration of the evidence. The evidence shows that the plaintiff was a tenant of the defendant during the season of 1919, occupying and cultivating certain lands and producing crops of grain thereon. During the threshing season of 1919 the defendant was out of the city, and he wrote to his wife and directed her to get some one to represent the defendant in making a division of the crop on several farms belonging to the defendant, including the lands cultivated by the plaintiff. She engaged one Hoffein to do this, and Hoffein was present at the time and place when plaintiff threshed the grain which he had raised on the land rented from the defendant. The grain was divided at the threshing machine. Plaintiff's share of the grain was hauled to an elevator in Kenmare, and defendant's share was placed in a granary on the premises. Under the terms of the contract the grain was to be divided equally. The last load of wheat threshed, containing some 54 1/4 bushels of wheat, belonged to the plaintiff under such division. It is undisputed that this load of grain was put into the granary of the defendant and mingled with the share of grain belonging to him instead of being hauled and stored in the elevator by the plaintiff. The plaintiff testified that Hoffein told him to put this load of wheat into defendant's granary because the defendant wanted it for seed, and that the defendant would settle with the plaintiff for such wheat. This statement is corroborated by other witnesses. Hoffein stated that he had no recollection of any such conversation as that testified to by the plaintiff. He (Hoffein) claimed that the last load of wheat was put in the granary because it was necessary to use the grain tank in which the wheat was contained to receive oats which was then being threshed. Plaintiff further testified that about two weeks after the grain was threshed and the wheat placed in defendant's granary he (plaintiff) went in to make settlement with the defendant; that as he was about to enter defendant's office, he met Hoffein coming out; that at that time Hoffein said:

“I just been in and talked with Friis and told him how it was. Now you can go in and settle with him.”

Plaintiff further testified:

“Q. Then you went in, did you not? A. I went in.

Q. And you settled with him? A. Yes, sir.

Q. And what settlement did you make at that time? A. Well, I showed him a statement, and he said, ‘Well, Hoffein just showed me one.’ He asked me what the price was, and I told him what the price was then. He asked me if I wanted to sell, and I said, ‘No; I ain't going to sell before spring.’ ‘All right,’ Friis said, and that was all that was said.

Q. And you understood that he would take the grain at the price that he would sell on in the spring? A. Yes, sir; the price that I sold the rest of it.

Q. And as far as you were concerned that settled the negotiations? A. Yes, sir.

Q. Well, then, Mr. Larson, when did Fred Friis-Fred Friis never settled with you, did he? A. No, sir.

Q. Has he paid you yet for that grain? A. No, sir.

Q. And have you asked him to pay for it? A. Yes; a good many times.

Q. And what was the next time that you had any conversation with Mr. Friis about this money that he owed you? A. Well it was in January some time; the last part of January or the first part of February. I can't just remember the date.

Q. That was about three or four months after you sold him the grain? A. Yes; four months, I guess.

Q. And what happened that time? A. Well I drove by there, and he come out and stopped me and told me that he didn't want that wheat.

Q. And he told you that he wouldn't pay you for it, I presume? A. Well, he said that he didn't want it; that he had changed his mind, and that he wanted to put in Marquis wheat instead of Macaroni.

Q. And what did you say? A. I say, All right; I can take it out.”

The plaintiff further testified that at the time this latter conversation was had there was so much snow and manure around the granary that he could not remove his grain. That some six weeks or more later he went up there and found that the grain had all been taken out of the granary. The defendant denied that he had ever purchased or agreed to purchase the wheat from the plaintiff. He also denied that he had ever authorized Hoffein to do so. He admitted, however, that Hoffein had notified him that the wheat had been placed in the granary. He also admitted that he had a conversation with the plaintiff a short time thereafter, regarding this grain, but he denies that the conversation was as testified to by the plaintiff. Defendant testified that he had three different tenants haul grain from the granary to be used for seed on farms belonging to the defendant. He was not present at the time any of the grain was taken. That all he knew as to the quantity of grain removed by them was based upon the information given him by those who hauled the grain out. That according to such information the grain removed by such persons was about 75 bushels less than defendant's share according to the machine measure. At the close of all the testimony, defendant moved that all evidence relating to the statements made by Hoffein indicating a purchase of the wheat be stricken out, on the ground that there was no evidence tending to establish authority on the part of Hoffein to make...