Minot Flour Mill Co. v. Swords

• Decision Date: 21 September 1912
• Citation: 23 N.D. 571,137 N.W. 828
• Parties: MINOT FLOUR MILL CO. v. SWORDS.
• Court: North Dakota Supreme Court

23 N.D. 571

137 N.W. 828

MINOT FLOUR MILL CO.

v.SWORDS.

Supreme Court of North Dakota.

Sept. 21, 1912.

Syllabus by the Court.

Rule 14 (91 N. W. viii) of the Supreme Court, which requires that an assignment of errors “must, in a way as specific as the case will allow, point out the errors objected to,” is not complied with by assignments in the following form: “Defendant assigns as error specification of error No. 3.” An assignment which, on its face, fails to advise the court of the alleged error complained of, but merely refers to the place in the printed record where such alleged error may be found, is wholly insufficient under the above rule.

In an action to recover an alleged balance due on account as the purchase price of seed grain, claimed to have been sold by plaintiff to defendant, there was a substantial conflict in the testimony as to whether two items in the account, one consisting of 34 bushels and 40 pounds, and the other of 40 bushels and 40 pounds (being the only items in dispute), were delivered by plaintiff to defendant. The trial court found in plaintiff's favor on such issue.

Held, that such finding has ample support in the testimony, and will not be disturbed by this court.

Appeal from Ward County Court; N. Davis, Judge.

Action by the Minot Flour Mill Company against George W. Swords. Judgment for plaintiff, and defendant appeals. Affirmed.E. R. Sinkler, of Minot, and J. A. Heder, of Medicine Lake, for appellant. F. B. Lambert, of Minot, for respondent.

FISK, J.

Plaintiff sues to recover a balance of $101.70, claimed to be due it from defendant on account as the purchase price of certain seed wheat, alleged to have been sold and delivered by plaintiff to defendant in April, 1909. The case was tried in the county court of Ward county without a jury, and resulted in a judgment in plaintiff's favor, from which judgment this appeal is prosecuted. A bill of particulars was served on defendant, and the whole dispute relates to two items only in the account between the parties, as follows: April 17, to 34 bu. and 40 lbs. seed wheat, $46.80; April 24, to 40 bu. and 40 lbs. seed wheat, $54.90. It is appellant's contention that he neither ordered nor received these items, and he challenges the sufficiency of the evidence to sustain the lower court's decision.

[1] In his brief appellant has attempted to assign 30 alleged errors; but such assignments do not comply with rule 14 (91 N. W. viii) of this court, which rule, among other things, provides: “The appellant's brief * * * shall contain: * * * Second. An assignment of errors which need follow no stated form, but must, in a way as specific as the case will allow, point out the errors objected to, and only such as he expects to rely on and ask this court to examine.”

Assignments numbered 1 to 29 are all in the following form: “(1) Defendant assigns as error specification of error No. 3. (Abstract, page 5; of the evidence, page 20.)” It is entirely clear that this is not a compliance with either the letter or spirit of such rule. It is true the court is referred to the place in the abstract where the matter complained of may be found. This necessitates a useless waste of the court's time. The purpose of the rule is to enable the court to ascertain from the assignments, as contained in the brief, of what the alleged error consists. The object of such rule is to require the presentation of the matter raised by the assignment of error, so that this court may understand just what it is called upon to decide, without the necessity of going beyond the assignment itself. As stated in 2 Encyc. Pl. & Pr. 943: “Just what will constitute a sufficiently specific assignment must depend very largely upon the special circumstances of the particular case; but always the very error relied upon should be definitely and clearly presented, and the court not compelled to go beyond the assignment itself to learn what the question is. The assignment must be so specific that the court is given some real aid, and a voyage of discovery through an often voluminous record not rendered necessary.” On page 941 of the same treatise, it is said: “The assignment should refer to the page of the record where the alleged error may be found; but such reference by itself will not constitute a sufficient assignment.”

The last assignment is also, we think, too general, and is also subject to the same criticism as the prior assignments. See 2 Encyc. Pl. & Pr. p. 953, and cases cited.

We might properly decline to notice any of appellant's alleged assignments of error for the foregoing reasons; but we have concluded to briefly notice the various contentions in the body of appellant's brief, and for the purpose of a correct understanding of such contentions a brief statement of the facts is necessary.

Plaintiff, at the times mentioned, was operating a flour mill in the city of Minot, and defendant, George W. Swords, resided in Minot, but owned and operated a farm near such city, his brother, John Swords, being in charge of such farm as defendant's representative; and, while the testimony is not clear as to just what authority he possessed in the operation of such farm, we deem it a fair assumption, from all the testimony, that he possessed general authority from defendant in relation thereto, and was, in effect, defendant's general agent in the management of such farm. It is an admitted fact that on or about April 11, 1909, the defendant telephoned to plaintiff's manager, William Dunnell, regarding the purchase of certain seed wheat, and was informed by Dunnell that plaintiff would furnish it,...