Schmidt v. Beiseker

• Decision Date: 17 April 1909
• Citation: 120 N.W. 1096,19 N.D. 35
• Parties: SCHMIDT v. BEISEKER.
• Court: North Dakota Supreme Court

19 N.D. 35

120 N.W. 1096

SCHMIDT

v.BEISEKER.

Supreme Court of North Dakota.

April 17, 1909.

Syllabus by the Court.

Questions fairly raised and decided on a former appeal in the same action are not open for consideration on a subsequent appeal, as such decision on the first appeal, whether right or wrong, became and is the law of the case.

Upon the question of the value of farm lands, the opinions of farmers are admissible, where they live in the vicinity of the land, are acquainted with its situation and quality, and its adaptability for agricultural purposes, and state that they know its value, although they may not have been engaged in buying and selling land and have no knowledge of an actual sale of the lands in question or of similar lands.

The question of the sufficiency of the evidence to sustain the verdict cannot be considered for the reasons: (a) The record does not affirmatively show that it embraces all the evidence; and (b) no proper specification of particulars is incorporated in the statement of the case.

A point not argued or referred to in appellant's brief will be deemed abandoned.

Appeal from District Court, Wells County; E. T. Burke, Judge.

Action by John L. Schmidt against Arthur N. Beiseker. Judgment for plaintiff, and, from an order denying a new trial, defendant appeals. Affirmed.Bessessen & Berry and Burke & Middaugh, for appellant. Hanchett & Wartner, for respondent.

FISK, J.

This case was here on a previous appeal (Schmidt v. Beiseker, 14 N. D. 587, 105 N. W. 1102, 5 L. R. A. [N. S.] 123, 116 Am. St. Rep. 706), and it was there held that the contract relied upon by plaintiff, for a breach of which damages were sought, is not within the statute of frauds, as contended by defendant's counsel, and the ruling of the trial court in dismissing the action upon the ground that the complaint failed to state facts sufficient to constitute a cause of action was reversed, and the cause remanded for further proceedings. For a statement of the facts, see former opinion. The cause was again tried in the court below, which trial resulted in a verdict and judgment in plaintiff's favor. In due time a motion for a new trial was made and denied, and it is from the order denying such new trial that this appeal is prosecuted. No assignment of errors is contained in appellant's brief. Hence under rule 14 (91 N. W. viii) it is optional with this court whether it will notice any of the alleged errors. We have decided, however, to briefly consider appellant's several contentions.

The main portion of appellant's printed brief and argument is devoted to a discussion of the proposition that the contract forming the basis of plaintiff's cause of action is within the statute of frauds, and hence the recovery of damages for the breach thereof cannot be sustained. A conclusive answer to such contention is the fact that this precise question was squarely raised and decided on the former appeal adversely to appellant's contention, and such decision, whether right or wrong, is now the law of the case. This is elementary.

It is contended that certain testimony relative to the value of the land, and hence having a bearing upon the extent of plaintiff's damages on account of the breach of the contract, was incompetent, and therefore the lower court erred to defendant's prejudice in receiving such testimony and in refusing to strike the same out on motion. There is no merit to this...